LIBRARY 


UNIVERSITY  OF  CALIFORNIA. 


©IFT    OF 


Class 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES, 


PUBLISHED   BY  THE 


National  Association  of  Car  Service 
Managers. 


1904. 

t» 

* 

American   Association 


Of 


Demurrage  Officers,' 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES, 


PUBLISHED   BY  THE 


National  Association  of  Car  Service      v-o<\ 

^r\3> 

Managers.  o 


OF   THE 

UNIVERSITY 

'    1904 


"pN  ACCORDANCE  with  a  resolution  presented  to  the  Na- 
3-  tional  Association  of  Car  Service  Managers  in  annual 
convention  at  Chicago,  III,  June,  1903,  the  following- 
compilation  of  Decisions  and  Opinions  in  Car  Service  Cases  is 
respectfully  submitted. 

The  Decisions  are   arranged   as  nearly   as  possible,  in 
chronological  order. ; 

For  all  reported  cases  the  legal  citation  is  given. 

The  following  index  is  an  endeavor  to  afford  ready  refer- 
ence to  the  various  points  of  law  established  by  these  decisions. 

A.  G.  THOMASON, 

Secretary. 
SCRANTON,  PA.,  May  12th,  1904. 


or  THE 
UNIVERSITY 

OF 


INDEX 


Supreme   Court  of   Massachusetts 1 

1872. 
Miller  vs.  Mansfield. 

Goods  held  by  railroad  subject  to  lien  for  demurrage. 
Charge  two  dollars  per  day  after  twenty-four  hours — 
Consignee  paid  under  protest  and  sued  in  District 
Court— Jury  verdict  in  favor  of  Consignee— Supreme 
Court  Justice  Morton  reverses  decision  and  finds  for 
railroad. 

Railroad  and  Warehouse  Commission  of  Illinois--       3 

October,   1890. 
Union  Brewing  Co.  of  Peoria  vs.  C.  B.  &  Q.  R.  R. 

No  reason  in  law  or  justice  why  detention  to  cars  should 
not  be  paid  for. 

Magistrate's  Court,  Columbus,  O.  3 

January,   1891. 
Powell  vs.  P.  C.  C.  &  St.  L.  Ry. 

Action  of  Replevin— Railroad  enforced  lien  for  demur- 
rage—Consignee bound  by  bill  of  lading  contract 
made  by  shipper— Railroad  has  the  right  to  hold 
goods  for  charges. 

Railroad   Commission  of  Alabama 7 

May,   1891. 
Complaint  of  Youngblood  &  Ehrman. 

Prayer  for  relief  from  demurrage  charges — Commission 
rules  such  charges  are  lawful 

Supreme  Court  of  Georgia---  8 

October,  1891. 
Miller  &  Co.  vs.  Georgia  Ry.  Co. 

Competent  for  common  carrier  to  enforce  a  reasonable 
demurrage  rule — Rate  of  one  dollar  per  car  per  day 
not  unreasonable  because  of  varying  sizes  of  cars; 


192946 


II 


because  fractions  of  days  are  charged  for  as  whole 
days ;  nor  because  customary  rate  of  storage  in  ware- 
houses or  elevators  is  lower;  nor,  as  a  matter  of  law, 
for  any  cause— Rules  not  invalid  because  promul- 
gated by  a  board  of  persons  representing  a  combina- 
tion of  carriers— Rules  lawful  whether  indicated  on 
bills  of  lading  or  not  as  long  as  customers  have  notice 
of  regulation  prior  to  shipment— Immaterial  whether 
consigned  direct  or  to  order— Cars  understood  to  be 
accessible  to  unloader  as  long  as  carrier  is  ready  to 
render  them  so  within  the  shortest  practicable  time 
after  notice  that  customer  is  ready  to  unload. 


Law  and  Equity   Court,   Louisville,   Ky      19 

November,   1891. 

Kentucky  Wagon  Mfg.  Co.  vs.  L.  &  N.  R.  R. 

Forty-eight  hours  time  allowed  is  reasonable— Exception- 
al circumstances  do  not  affect  the  rule— Charge  of 
one  dollar  per  day  is  reasonable — Not  necessary  to 
consult  shippers  or  consignees  in  framing  the  rule  — 
Necessary  and  reasonable  rules  for  the  conduct  of 
transportation  not  invalid  because  no  self-inflicted 
penalties  upon  the  carriers  are  contained  in  such 
rules  —  Car  Service  Associations  not  organized  in 
antagonism  to  legitimate  competition  —  Delivering 
road  is  the  special  owner  and  bailee  of  all  cars  in  its 
possession. 

Court  of  Appeals,    Kentucky  22 

October,    1895. 

Kentucky  Wagon  Mfg.  Co.  vs.  O.  &  M.  Ry. 

There  may  be  a  reasonable  charge  imposed  by  carriers 
for  detention  to  cars  beyond  a  reasonable  time — Rules 
may  be  applied  through  an  association,  as  two  or  more 
carriers  may  do  jointly  what  each  might  do  separately 
— Time  of  forty-eight  hours  and  charge  of  one  dollar' 
are  reasonable— Rules  not  vitiated  by  failure  to  con- 
sult shippers  in  framing  them— Demurrage  associa- 
tions are  not  illegal  combinations  restrictive  of  com- 
petition— Each  road  has  the  right  to  control  all  cars  in 
its  possession— Railroads  have  no  right  to  refuse  to 
receive  freight  from  or  switch  cars  for  a  shipper 
because  he  owes  to  them  or  to  other  members  of  the 
association  car  service  fees  which  he  refuses  to  pay, 
or  because  he  and  other  shippers  have  combined  to 
resist  the  enforcement  of  the  reasonable  rules  of  the 
association  —  Shipments  incurring  charges  may  be 
held  by  the  carriers  until  charges  are  paid. 


Ill 

District  Court,  Woodbury  County,   Iowa  32 

January,   1892. 
C.  M.  &  St.  P.  Ry.  vs.  Pioneer  Fuel  Co. 

Defendant  denied  right  of  carrier  to  recover  for  detention 
to  cars,  because  no  contract  existed  in  which  defendant 
recognized  such  right  —  Court  held  that  indefinite 
detention  to  cars  would  necessitate  a  large  and 
unnecessary  increase  of  the  capital  invested  and  a 
corresponding  increase  in  freight  charges —Public 
right  to  economical  service  thereby  violated — Failure 
to  enforce  car  service  rules  would  put  burden  of  in- 
creased freight  rates  upon  the  general  public,  instead 
of  upon  the  persons  who  get  the  unwarranted  use 
of  cars  and  tracks — When  property  is  used  after 
notice  of  charge,  the  law  implies  a  contract  to  pay  for 
such  use— Can  conceive  of  no  more  reasonable  and 
necessary  regulation  than  the  one  we  are  asked  to  en- 
force in  this  action. 

District  Court,  Arapahoe  County,  Colorado-  34 

March,    1892. 
U.  P.  D.  &  G.  Ry.  vs.  Cooke. 

Railroads  have  right  to  enforce  reasonable  rules— Forty- 
eight  hours  a  reasonable  time— Two  dollars  per  car 
per  day  a  reasonable  charge— Rules  not  invalid 
because  shipper  is  not  consulted  in  framing  them— If 
rules  were  known  to  defendant  specific  notice  not 
necessary -Rule  operative  whether  indicated  on  bills 
of  lading  or  not — Not  material  that  shipment  was 
made  contrary  to  wish  of  defendant. 

Law  and  Equity  Court,   Louisville,   Ky.  35 

June,   1892. 
Newport  News  &  Miss.  Valley  Co.  vs.  J.  Schwartzwalder  &  Son. 

Suit  brought  by  railroad  to  recover  car  service  charges- 
Jury  returned  verdict  in  favor  of  the  railroad  and 
Court  gave  judgment  for  amount  claimed. 

Common  Pleas  Court,    Louisville,   Ky.  35 

June,    1892. 
O.  &  M.  Ry.  vs.  Patrick  Bannon. 

Railroad  sent  goods  to  public  store  after  demurrage  had 
accrued.  Consignee  reptevined—  Railroad  answered 
claiming  demurrage  charges,  switching  charges  to 
warehouse  and  storage  charges — Court  gave  railroad 
judgment,  saying  he  did  not  see  how  carriers  could 
have  cars  to  furnish  shippers  without  the  car  service 
rules. 


IV 

Court  of  Common  Pleas,   Butler  County,  Pa.  •  36 

September,    1892. 
P.  &  W.  Ry.  vs.   Gilliland. 

Railroad  brought  suit  to  enforce  payment  of  demurrage 
—Defendant  averred  that  shipment  was  forwarded  by 
shipper  one  month  too  soon—  Denied  right  of  rail- 
roads to  charge  and  collect  demurrage — Court  gave 
railroad  judgment  —  Upon  arrival  of  shipment  at 
destination  the  liability  of  railroad  as  carrier  ceased, 
and  liability  as  warehouseman  began— Can  conceive 
of  no  more  necessary  and  reasonable  regulation  than 
the  demurrage  rule,  wholly  in  the  interest  of  shippers 
—Common  carriers  compelled  to  accept  goods  for 
transportation,  and  it  would  be  unjust  not  to  enforce 
a  corresponding  duty  on  the  shipper,  to  not  detain  or 
deprive  the  common  carrier  of  the  use  of  the  vehicles 
which  the  law  places  at  his  command. 

Circuit  Court,  Oneida  County,  Wis.  45 

October,   1892. 
M.  L.  S.  &  W.  Ry.  vs.  Lynch. 

Railroad  unloaded  shipment,  holding  it  for  demurrage 
charges— Consignee  removed  shipment  against  pro- 
test of  carrier — Consignee  claimed  car  not  properly 
placed  and  claimed  $500.00  damages — Jury  decided 
car  was  properly  placed — Court  decided  that  demur- 
rage was  reasonable  both  as  to  time  allowed  and 
amount  charged — Judgment  for  railroad  with  costs. 

Sixth  District  Court  of  Rhode  Island  46 

At  Providence,  January,  1893. 
Goff  vs.  Old  Colony  R.  R. 

Railroad  held  shipment  for  payment  of  demurrage  charges 
Consignee  sued  for  $100.00  damages— Court  af- 
firmed right  of  railroad  to  hold  freight  for  demurrage 
charges  and  gave  judgment  for  the  railroad. 

Circuit  Court  of  Jefferson   County,    W.  Va.  46 

March,    1893. 
Geo.  Campbell  Co.  vs.  B.  &  O.  R.  R. 

Railroad  held  two  cars  of  bark  for  demurrage  charges, 
and  finally  sold  for  freight  and  demurrage — Consignee 
sued  for  $500.00  damages— Jury  waived  — Court 
gave  judgment  in  favor  of  railroad  for  $14.88  being 
the  difference  between  value  of  bark  sold  and  the 


amount  of  freight  and  demurrage  charges — Supreme 
Court  affirmed  the  above  decision,  and  unanimously 
refused  an  appeal. 

Circuit  Court  of  Cook  County.  III.--  47 

November,    1893. 
Thomas  Purcell  et  al  vs.  P.  C.  C.  &  St.  L.  Ry. 

Railroad  held  cars  loaded  with  coal  to  enforce  payment  of 
demurrage— Consignees  obtained  mandatory  injunc- 
tion compelling  delivery— Case  heard  by  Master  in 
Chancery  and  verdict  given  railroad — Court  sustained 
the  Master  and  holds  that  carriers  may  enforce  a  lien 
for  demurrage  due  on  the  particular  shipment  held, 
such  as  coal. 

Supreme  Court  of  Appeals  of  Virginia  53 

January,   1894. 
N.  &  W.  R.  R.  vs.  Adams,  Clement  &  Co. 

Suit  in  assumpsit  to  recover  demurrage  paid  —  Circuit 
Court  of  Roanoke  County  decided  in  favor  of  con- 
signee—Case appealed  by  railroad — Supreme  Court 
reversed  the  Circuit  Court,  dismissing  consignee's 
suit— Court  stated  that  without  the  demurrage  rule 
the  business  of  the  railroad  and  the  public  service 
must  necessarily  suffer. 

Supreme   Court,  Chenango   County,   IM.  Y.  58 

March,    1894. 
Warren  L.  Scott  vs.  D.,  L.  &  W.  R.  R. 

Railroad  held  part  of  shipment  of  lumber  for  demurrage 
charges— Consignee  sued  for  conversion  of  property 
— Court  gave  verdict  to  railroad  holding  that-  -  Bill  of 
lading  containing  demurrage  clause  is  binding  con- 
tract— Amount  of  charge  is  reasonable — That  lien  was 
not  waived  by  railroad  because  it  accepted  freight 
charges  and  took  consignee's  receipt  for  property  — 
The  railroad  rightfully  detained  the  lumber  for  its 
demurrage  charges. 

County  Court,  Winnebago   County,  Wis.  65 

May,    1894. 
C.  &  N.  W.  Ry.  vs.  John  Strange  Paper  Co. 

Railroad  sued  consignee  for  demurrage — Jury  waived— 
Court  gave  railroad  judgment. 


VI 

County  Court,  Winnebago  County,  Wis.  65 

May,   1894. 
M.  &  N.  R.  R.  vs.  John  Strange  Paper  Co. 

Railroad  sued  consignee  for  demurrage — Jury  waived — 
Consignee  did  not  dispute  records,  or  right  to  charge 
demurrage— But  counter  claimed  for  delays  by  rail- 
road in  placing  cars  —  Counter  claim  withdrawn- 
Judgment  given  to  railroad. 

Court  of  Common  Pleas  No.  3.  Hamilton  Co.,  O.     66 

October,   1894. 
Dawson,  Blackmore  &  Co.  et  al  vs.  C.  C.  C.  &  St.  L.  Ry. 

Consignee  sued  to  recover  car  service  charges  paid  under 
protest,  and  under  alleged  coercion — Jury  trial — Judge 
charged  that  carriers  have  common  law  right  to  charge 
for  delay  to  cars — A  reasonable  charge  is  what  such 
cars  would  earn  if  not  detained — Question  of  delivery 
of  order  shipment  on  verbal  directions  without  bill  of 
lading— Question  of  notice  by  posting  list  on  change 
— Jury  returned  verdict  for  the  railroad. 

Law  and  Equity  Court,   Richmond,  Va.  73 

March,    1895. 
Antrim  &  Sons  vs.  R.  F.  &  P.  R.  R. 

Action  of  detinue — Demurrage  earned  by  reason  of  ship- 
ment being  billed  "to  order"  and  no  local  consignee 
shown — Railroad  put  in  special  plea  asserting  lien 
upon  the  shipment  for  demurrage— Court  ruled  that 
shipments  "to  order"  are  subject  to  same  rule  as 
shipments  direct  — Free  time  to  begin  to  run  from  ar- 
rival of  car — Railroad  has  right  of  lien. 

Superior  Court  of  Tippecanoe  County,   Ind.  74 

April,   1895. 
La  Fayette  Lumber  &  Mfg.  Co.  vs.  C.  C.  C.  &  St.  L.  Ry. 

Action  of  replevin — Part  shipment  of  lumber  held  for 
demurrage— Consignee  replevined— Consignee  claim- 
ed discrimination  in  that  forty-eight  hours  additional 
were  allowed  on  coal  and  coke— And  in  that  demur- 
rage rules  were  not  enforced  at  all  points— Court  ruled 
that  the  free  time  was  reasonable— Charge  not  exces- 
sive—No discrimination  against  lumber  dealers  by 
additional  time  allowed  coal  dealers — No  discrimina- 
tion by  reason  of  rules  not  being  enforced  at  all 
points— Judgment  given  to  railroad. 


VII 

Railroad  and  Warehouse   Commission,  Missouri-      76 

April,    1895. 
Coal  Dealers  Protective  Ass'n  vs.  St.  Louis  Car  Service  Ass'n. 

Complaint  of  unjust  and  unreasonable  demurrage  charges 
—And  prayer  for  restoration  of  charge  of  fifty  cents 
per  car  per  day  while  on  private  tracks— Also  rule  to 
penalize  railroads  for  delay  in  removing  cars  from 
side  tracks— Complaint  dismissed  and  rules  sustained 
as  just  and  reasonable. 

Circuit  Court,   Jackson  County,   Mo.  77 

February,   1896. 
Griffith  vs.  tf.  C.  F.  S.  &  M.  R.  R. 

Railroad  held  shipment  to  enforce  payment  of  demurrage 
—  Consignee  replevined  —  Question  is  demurrage 
charge  legal— Has  carrier  a  lien  for  such  charges- 
Court  ruled  in  the  affirmative— Public  convenience 
and  trade  would  be  seriously  interfered  with  if  indi- 
viduals were  allowed  to  unnecessarily  detain  cars  for 
storage  purposes. 

Circuit  Court,  Coles   County,   III.  81 

April,   1896. 
Fuller  &  Fuller  vs.  C.  C.  C.  &  St.  L.  Ry. 

Railroad  held  shipments  for  demurrage  charges— Con- 
signee replevined— Jury  waived— Court  gave  judgment 
to  railroad— Common  law  gives  lien  for  reasonable 
charges  for  care  bestowed— Time  allowed  was  reason- 
able—To recognize  a  lien  promotes  justice  and  avoids 
litigation— Object  of  demurrage  rule  is  to  secure  to 
the  railroads  and  public  the  use  of  cars — To  fail  to 
recognize  this  rule  would  be  disastrous  to  public 
interests. 

Circuit  Court,  St.   Louis,  Mo.  85 

June,   1896. 
Wabash  R.  R.  vs.  Berry-Horn  Coal  Co. 

Action  by  railroad  for  demurrage— Defense  argued  that 
the  charge  was  illegal  and  unreasonable — That  forty- 
eight  of  the  cars  charged  for  were  owned  by  other  roads 
—That  service  was  bad,  cars  bunched,  and  railroad 
not  entitled  to  recover— That  soft  coal  must  be  han- 
dled from  cars  to  wagons  to  avoid  disintegration  due 
to  frequent  handling  and  cars  needed  as  warehouses 
—Cars  on  private  track  and  charge  of  one  dollar  per 


day  therefore  a  discrimination  —  Court  held  that 
carrier  has  right  to  a  reasonable  charge— That  charge 
and  time  allowed  are  reasonable— That  delivering  road 
is  special  owner  or  bailee  of  foreign  cars— That  ques- 
tion of  good  or  bad  service  not  pertinent  to  question 
of  legality  of  demurrage  charges— Judgment  given  to 
railroad. 

Circuit  Court,  Wayne  County,   Mich.  87 

June,   1896. 
McEachran  &  Co.  vs.  G.  T.  Ry. 

Three  cars  of  cord  wood  delayed  beyond  free  time  for  un- 
loading by  delay  in  receipt  of  freight  charges- 
Consignee  claimed  freight  charges  paid  by  check 
mailed  within  proper  time— Railroad  asserted  lien  for 
demurrage,  and  sent  goods  to  public  warehouse  - 
Consignee  sued  for  $500.00  damages— Court  ruled 
that  car  service  rules  were  valid  and  reasonable — 
Verdict  for  the  railroad. 

Supreme  Court,   District  of  Columbia  89 

June,   1897. 
Herr  vs.  B  &  P.  R.  R. 

Railroad  held  goods  for  demurrage,  and  sold  them  for 
such  charges — Before  goods  were  sold  consignee 
sued  in  action  of  trover  to  recover  $5000  damages- 
Court  held  that  contract  made  by  shipper  including 
demurrage  clause,  was  binding  upon  consignee  even 
though  latter  was  ignorant  of  the  demurrage  rules- 
Court  ruled  that  railroad  had  lien  for  demurrage  by 
both  the  contract  and  the  common  law — That  con- 
signee was  bound  by  the  contract  made  with  shippers 
because  they  were  the  owners  of  the  goods  at  the 
time  of  making  shipment,  and  because  they  were  the 
consignee's  agents  in  making  the  shipment -Verdict 
for  railroad. 

Circuit  Court,   Jefferson  County,  Ky.  95 

April,   1898. 
Duckwall  vs.  C.  C.  C.  &  St.  L.  Ry. 

Consignee  obtained  mandatory  injunction  compelling 
railroad  to  deliver  cars  on  private  siding—  Railroad 
had  refused  such  delivery  because  owner  owed  car 
service  —  Judge  ruled  that  this  case  is  similar  to 
Kentucky  Wagon  Mfg  Co.  — Consignee  perpetrated 
first  wrong  in  refusing  to  pay  car  service  charges- 
Should  pay  such  charges  relying  upon  the  Associa- 
tion for  redress,  or  failing  that,  the  courts  —  In- 
junction dissolved. 


IX 

Circuit  Court,   Mobile   County,    Ala.  99 

June,   1898. 
Gulf  City  Cons.  Co.  vs.  L.  &  N.  R.  R. 

Cars  delayed  because  freight  charges  exceeded  the  rate 
stipulated  in  bills  of  lading— Demurrage  paid  under 
protest  and  suit  brought  to  recover — Court  ruled  that 
railroad  had  right  to  charge  demurrage  pending  pay- 
ment of  all  freight  charges— Verdict  for  railroad. 

Supreme   Court,    Georgia  101 

March,   1900. 
Dixon  et  al  vs.  C.  of  G.  Ry. 

Goods  held  for  prepayment  of  freight— Consignee  denied 
right  of  carrier  to  charge  demurrage  for  such  delay 
—  Relation  of  railroad  to  shipper  is  that  of  warehouse- 
man until  freight  is  ready  for  forwarding— Demurrage 
as  applied  to  detention  of  cars  is  legal  — Carrier  has 
right  of  lien  for  demurrage— Judgment  for  railroad. 

Supreme   Court,  Tennessee  -  117 

December,   1900. 
Swan  vs.  L.  &  N.  R.  R. 

Delivery  wanted  on  enclosed  private  siding— Goods  with- 
held from  such  delivery  pending  payment  of  freight 
charges  —  Meantime  demurrage  accrued  and  goods 
held  for  payment  of  demurrage  —  Consigned  sued 
charging  conversion— Court  rules  that  demurrage  is 
legal— Time  allowed  and  amount  charged  are  reason- 
able—Under bill  of  lading  contract  carrier  has  lien 
for  demurrage— Carrier  not  bound  to  deliver  on 
private  siding  until  freight  charges  are  paid — Judg- 
ment for  railroad. 


Railroad  &  Warehouse   Commission,   Missouri          121 

June,   1901. 
Darlington  &  Co.  vs.  Central  Car  Service  Ass'n. 

Cars  delayed  on  hold  tracks  awaiting  orders— Com- 
mission ruled  that  charges  were  correct— Consignees 
doing  business  on  private  sidings  should  keep  such 
sidings  clear  and  in  condition  for  use  to  their  full 
capacity — Public  interest  demands  full  compliance 
with  car  service  rules— Complaint  dismissed. 


Superior  Court,  Catawba  County,   N.  C.  -  125 

July,  1901. 
Latta-Martin  Pump  Co.  vs.  So.  Ry. 

Railroad  held  goods  for  payment  of  demurrage— Con- 
signee replevined — Trial  Justice  decided  in  favor  of 
consignee — Railroad  appealed  —  Superior  Court  de- 
clared railroad  had  right  of  possession— Demurrage 
rules  reasonable— Judgment  for  railroad. 

Supreme  Court,  Pennsylvania  126 

Opinion,  February,   1902. 
P.  R.  R.  vs.  Midvale  Steel  Co. 

Common  carrier  has  an  unquestionable  right  to  enforce 
reasonable  demurrage  rules— Validity  of  rules  not 
affected  by  failure  of  carrier  to  consult  shipper  in 
framing  them— Rendering  of  bill  for  demurrage  is 
best  possible  form  of  notice  of  rule. 

Court  of  Appeals,  St.    Louis,   Mo.-  130 

October,   1902. 
Darlington  vs.  Mo.  Pa.  Ry. 

Two  cars  of  lumber  placed  on  private  siding — Railroad 
removed  cars  and  held  goods  for  demurrage  — Lower 
Court  gave  consignee  verdict— Court  of  Appeals 
ruled  that  railroad  did  not  part  with  possession  and 
control  of  cars  and  contents  — Railroad  had  common 
law  lien  for  storage  —  Right  to  demurrage  exists 
independent  of  contract  or  statute— Individual  con- 
venience should  be  subordinate  to  public  good — 
Country's  commerce  is  obstructed  by  use  of  cars  for 
storage  purposes. 

United  States   Treasury  Decision  135 

May,   1903. 
Edward  Frolich  Class  Co.  Inquiry. 

A  lien  for  demurrage,  where  it  exists,  is  embraced  by 
section  2981  Revised  Statutes. 

Circuit  Court,   Tazewell   County,  III.--  139 

September,   1903. 
Smith  &  Co.  vs.  P.  &  P.  U.  Ry. 

Consignee  averred  time  allowed  for  unloading  unreason- 
able when  two  or  more  cars  arrived  together— And  that 


stipulations  in  bills  of  lading  have  no  binding  effect 
upon  consignee  unless  he  assents  thereto— Court 
charged  jury  to  return  verdict  for  railroad— Carriers 
have  legal  right  to  enforce  reasonable  rules  to 
prevent  delay  to  cars — Have  lien  for  demurrage 
charges. 

Circuit  Court,  St.  Joseph   County,  Ind.  14O 

September,   1903. 
Miller  et  al  vs.  T.  H.  &  L.  Ry. 

Railroad  held  goods  for  demurrage  charges — Consignee 
replevined— Court  ruled  that  carriers  have  lien  for 
car  service  charges— Verdict  for  the  railroad. 

Supreme  Court,  Illinois  147 

October,  1903. 
Schumacher  vs.  C.  &  N.  W.  Ry. 

Railroad  held  part  of  shipment  of  coke  for  payment  of 
car  service  charges— Consignee  replevined — Circuit 
Court,  Appellate  Court  and  Supreme  Court  sustain 
the  right  of  railroad  to  lien  for  such  charges — Public 
interests  require  that  cars  shall  not  be  unreason- 
ably detained— Time  allowed  for  unloading  should 
not  be  affected  by  distance  goods  must  be  hauled, 
or  means  of  unloading  employed— The  object  of  car 
service  rules  a  public  benefit— Charge  of  $1.00  per 
day  very  reasonable. 

Supreme  Court,    Mississippi  227 

October,   1903. 
N.  O.  &  N.  E.  R.  R.  vs.  George  &  Co. 

Railroad  held  goods  for  demurrage  —  Consignee  re- 
plevined—Cars  held  on  storage  track,  consignee's 
private  siding,  used  jointly  with  another  consignee, 
being  full  of  cars — Six  cars  delivered  and  six  held  for 
demurrage  on  all— Court  held  demurrage  rules  valid 
— And  sustained  right  of  railroad  to  lien  upon  the 
goods  for  demurrage  charges. 

District  Court,  Black  Hawk  County,  la.  242 

January,   1904. 
Towsend  &  Merrill  vs.  R.  Rs. 

Railroad  held  shipments  of  lumber  for  car  service  charges 
— Consignees  paid  under  protest,  and  obtained  indict- 
ment of  railroads  for  conspiracy  in  combining  in  Car 


xn 


Service  Association — Railroads  contended  statute  un- 
constitutional—Demurrer sustained. 


United  States  Circuit  Court,    Chicago,    III. 245 

1904. 
Coal  Shippers'  Ass'n  of  Chicago  vs.  Chicago  Car  Service  Ass'n. 

Letter  of  C.  W.  Sanford,  Manager  Chicago  Car  Service 
Ass'n,  to  Hon.  S.  H.  Bethea,  United  States  District 
Attorney,  explaining  organization  and  purpose  of  car 
service  associations. 


iHr-ui  n  f 
Y.  Printing 
Dtnii-  IBank 


THE 

UNIVERSITY 

OF 


LEGAL  DECISIONS  AND  OPINIONS. 


SUPREME  COURT  OF  MASSACHUSETTS, 
112  MASS.  260. 


MILLER 

VS. 
MANSFIELD,  AGENT  HOUSATONIC  R.  R.  CO. 


This  is  a  case  where  a  car  load  (containing  one  hun- 
dred barrels)  of  flour  was  placed  for  delivery  on  the  tracks 
of  the  Housatonic  R.  R.  Co.  at  Great  Barrington,  Mass., 
on  Feb.  14th,  1872,  and  the  consignee  was  notified  on  the 
same  date  that  he  would  be  allowed  24  hours  in  which  to 
unload  the  car,  and  that  the  charge  after  24  hours  would 
be  $2.00  per  day  for  demurrage.  The  consignee  was  aware 
of  the  arrival  of  the  car,  but  deferred  unloading  until  the 
20th  of  February,  when  he  tendered  the  agent  the  amount 
of  freight  charges,  but  declined  to  pay  the  demurrage.  The 
agent  refused  to  permit  of  the  car  being  unloaded  and  held 
the  flour  as  a  lien  for  the  charges. 

Subsequently  the  consignee  paid  all  charges  under 
protest  and  removed  the  flour  and  then  brought  suit  in 
the  District  Court,  before  a  jury,  for  damages.  The  case 
was  decided  in  his  favor.  It  was  appealed  by  the  Rail- 
road Co.  and  the  following  is  the  opinion  of  Justice  Mor- 
ton, of  the  Supreme  Court  of  Massachusetts : 

"For  the  purpose  of  this  hearing  all  the  facts  which 
the  defendant  offered  to  show  are  to  be  taken  as  estab- 


iished.  We  must  assume,  therefore,  that  there  was  an  ex- 
isting regulation  and  usage  of  the  Housatonic  R.  R.  Co. 
that  car-load  freight,  like  that  of  plaintiff's,  should  be  un- 
loaded by  the  consignees  within  24  hours  after  notice  to 
him  of  their  arrival;  that  for  delay  in  unloading  after  24 
hours  the  consignee  should  pay  $2.00  per  day  for  each 
car  belonging  to  other  Railroad  Companies,  and  that  this 
regulation  and  usage  was  known  to  the  plaintiff." 

Being  known  to  the  plaintiff  it  is  to  be  presumed,  in 
the  absence  of  any  evidence  to  the  contrary,  that  the  par- 
ties contracted  in  reference  to  it.  It  enters  into  and  forms 
part  of  their  contract,  and  the  Railroad  Company  is  en- 
titled to  recover  the  amount  fixed  by  the  usage,  by  virtue 
of  the  plaintiff's  promise  to  pay  it.  This  charge  is,  in  its 
essential  character  a  charge  for  storage.  After  the  arrival 
of  the  goods  at  their  destination  the  liability  of  the  Com- 
pany, as  common  carriers,  ceased,  but  they  became  liable 
for  the  custody  of  the  goods  as  warehousemen,  and,  if  they 
were  not  removed  within  a  reasonable  time,  were  entitled 
to  compensation,  for  which  they  had  a  lien  as  warehouse- 
men. "Norway  Plains  Co.  vs.  Boston  &  Maine  R.  R.,  1 
Gray,  263."  The  parties  by  their  agreement,  fixed  the  rate 
of  compensation  which  the  company  should  receive  and 
the  time  when  it  should  commence.  It  is  not  material 
that  the  goods  remained  in  the  car  instead  of  being  put 
into  a  storehouse.  The  responsibility  of  the  company  for 
their  custody  was  the  same  as  if  they  had  been  stored,  and 
they  had  the  right  to  retain  them  until  their  charges  were 
paid. 

We  are  of  the  opinion,  therefore,  that  instructions 
should  have  been  given  (in  the  District  Court)  substan- 
tially as  requested  by  the  defendant,  and  that  the  presid- 
ing judge  erred  in  the  instructions  which  he  gave." 


RAILROAD     AND     WAREHOUSE     COMMISSION 

OF  THE  STATE  OF  ILLINOIS. 

COMPLAINT  No.  64. 

HEARD  AT  CHICAGO,  OCTOBER  4,  1890. 


UNION  BREWING  COMPANY  OF  PEORIA 

VS. 

THE  CHICAGO,  BURLINGTON  &  QUINCY  R.  R. 

CO. 


OPINION  OF  PHILLIPS,  COMMISSIONER. 


No  reason  is  perceived  in  law  or  justice  why  any 
unreasonable  and  unnecessary  detention  of  cars  by  con- 
signees should  not  be  paid  for.  Car  demurrage  is  an 
important  subject  which  has  arisen  in  a  practical  way  only 
within  late  years,  and  long  after  our  statutes  for  the  regu- 
lation of  railroads  was  passed. 

It  does  not,  however,  follow  that  because  there  is  no 
statutory  regulation  of  the  question,  there  is  no  law. 


MAGISTRATES'  COURT,  COLUMBUS,  O., 
JAN.,  1891. 


FRANK  E.  POWELL 

VS. 
P.  C.  C.  &  ST.  L.  RY.  CO. 


This  is  an  action  of  replevin  brought  by  the  plaintiff 
to  recover  of  the  defendant  the  possession  of  a  car  load 
of  lumber  which  he  claims  is  unlawfully  detained  from  him 


by  the  defendant.  The  parties  have  waived  all  technical 
questions  and  ask  that  the  case  be  decided  solely  on  the 
merits  of  the  real  controversy  between  them.  The  real 
question  at  issue  is  the  right  of  the  railroad  company  to 
demand  payment  of  the  so-called  car  service  charges  as 
a  lien  on  the  property  and  to  hold  the  lumber  until  these 
charges  are  paid.  This  is  an  important  question  and  has 
excited  considerable  attention.  It  affects  the  rights  of  all 
the  railroad  companies  and  of  every  merchant  or  dealer 
receiving  freight  by  the  car  load,  and  should  be  settled 
beyond  legal  controversy  for  the  interest  of  all  parties 
concerned  in  shipping  goods. 

The  facts  are  not  controverted.  Mr.  Powell  bought 
a  car  load  of  lumber  in  Michigan  of  a  lumber  company 
there,  to  be  delivered  to  him  on  board  the  "cars  at  Kal- 
kaska.  The  lumber  company  duly  delivered  the  lumber 
to  the  railroad  company  there,  receiving  a  bill  of  lading 
in  the  usual  form,  signed  by  the  agent  of  the  railroad 
company.  The  bill  of  lading  was  not  sent  to  Mr.  Powell 
by  the  lumber  company  until  after  the  suit  was  com- 
menced, when  Mr.  Powell  wrote  for  it,  and  it  was  then 
sent  to  him.  The  lumber  arrived  here  somewhere  from  the 
first  to  the  third  of  November,  and  on  the  latter  day  Mr. 
Powell  received  notice  by  postal  card  of  its  arrival.  He 
did  not  send  his  teams  for  the  lumber  until  more  than 
forty-eight  hours  after  receiving  the  notice,  and  when  the 
teams  arrived  no  objection  was  made  to  delivering  the 
lumber,  on  account  of  Mr.  Powell's  not  having  the  bill  of 
lading,  but  the  drivers  were  informed  that  there  was  $1.00 
car  service  charges  which  would  have  to  be  paid  before  de- 
livering. Mr.  Powell  refused  to  pay,  and  from  time  to  time 
thereafter  demanded  the  lumber,  but  the  railroad  company 
always  refused  to  deliver  it  to  him  unless  he  paid  the  car 
service  charges  of  $1.00  per  day  for  every  day  the  car  was 
detained  after  the  forty-eight  hours.  The  matter  remained 
in  this  condition  until  December  llth,  when  plaintiff 
brought  this  action  and  got  possession  of  the  lumber  by 
writ  of  replevin.  The  car  was  thus  detained  on  the  tracks 
of  the  company  thirty-three  days  after  the  forty-eight 
hours,  not  counting  Sundays  or  legal  holidays.  The  bill 
of  lading,  among  other  terms  and  conditions,  contains  the 
following : 

—Fifth — Property  not  moved  by  the  person  or  party 


entitled  to  receive  it  within  twenty-four  hours  after  its 
arrival  at  destination,  may  be  kept  in  the  car,  depot  or 
place  of  delivery  of  the  carrier,  at  the  sole  risk  of  the 
owner  of  said  property,  or  may  be,  at  the  option  of  the 
carrier,  removed  or  otherwise  stored  at  the  owner's  risk 
and  cost,  and  there  held  subject  to  lien  for  all  freight  and 
other  charges.  The  delivering  carrier  may  make  a  rea- 
sonable charge  per  day  for  the  detention  of  any  car,  and 
for  the  use  of  track,  after  the  car  has  been  held  forty-eight 
hours  for  unloading ;  and  may  add  such  charge  to  all  other 
charges  hereunder,  and  hold  said  property  subject  to  a 
lien  therefor." 

The  plaintiff  claims: 

First — That  the  contract  was  one  which  a  common 
carrier  (railroad  company)  has  no  authority  to  make.  Sec- 
tion 3838  of  the  Rev.  Stat.  is  as  follows:  "Section  3838 
(common  carrier  companies).  A  corporation  organized 
as  and  for  a  common  carrier  company  shall  have  the  fol- 
lowing powers : 

1.  To  make  all  contracts  that  it  shall  be  lawful  for 
natural  persons  to  make  for  the  carriage  of  persons  and 
the  storage,  forwarding,  carriage  and  delivery  of  prop- 
erty, but  subject  to  the  same  liabilities." 

As  there  was  nothing  immoral  in  the  contract  and 
nothing  prohibited  by  any  statute,  and  the  contract  was 
plainly  within  the  scope  of  the  railroad  company,  we  see 
no  reason  why  the  contract  was  not  one  which  the  rail- 
road company  was  authorized  to  make. 

Second — The  plaintiff  further  claims  that  there  is 
nothing  in  the  contract  which  gives  the  railroad  company 
the  right  to  claim  a  lien  on  the  lumber  for  the  car  ser- 
vice charges.  A  part  of  the  bill  of  lading,  above  set  forth, 
reads  as  follows :  "The  delivery  carrier  may  make  a  reas- 
onable charge  per  day  for  the  detention  of  any  car,  and 
for  the  use  of  the  track  after  the  car  has  been  held  forty- 
eight  hours  for  unloading;  and  may  add  such  charge  to 
all  other  charges  hereunder  and  hold  said  property  sub- 
ject to  a  lien  therefor."  This  seems  about  as  plain  as 
language  can  make  it,  and  if  the  contract  is  binding  on 
the  parties,  it  clearly  means  that  the  railroad  company 


may  hold  the  goods  until  the  reasonable  charges  for  the 
detention  of  the  car  are  paid. 

The  plaintiff  claims : 

Third — That  even  if  the  contract  is  legal  and  bind- 
ing on  the  parties  who  made  it  in  Michigan,  Mr.  Powell, 
not  having  signed  it  or  seen  it  before  he  demanded  the 
lumber,  it  is  claimed,  he  was  not  bound  by  it. 

The  defendant  claims  that  when  Mr.  Powell  agreed 
with  the  lumber  company  in  Michigan  to  deliver  the  lum- 
ber to  him  on  board  the  cars  in  Michigan  he  thereby  au- 
thorized the  lumber  company  to  make  a  contract  of  ship- 
ment with  the  railroad  company,  and  that  the  lumber  com- 
pany thereby  became  his  agent  for  that  purpose,  and  that 
he  is  bound  by  the  contract  which  it  made;  and  further 
that  ratified  the  contract  which  the  lumber  company  had 
made.  And  this  is  the  main  question  argued  in  the  case. 

In  Angell,  on  Carriers,  page  359,  it  is  said:  "After 
consignee  or  indorsee  of  a  bill  of  lading,  containing  the 
clause  making  the  goods  deliverable  to  him  on  payment 
of  freight,  accepts  the  consignment,  there  is  either  a  legal 
presumption  that  he  contracted  to  pay  the  freight,  or  evi- 
dence from  which  the  jury  would  be  warranted  in  finding 
a  contract  by  the  consignee  to  pay  the  freight." 

I  also  find  in  Lawson,  on  Contracts  of  Carriers,  page 
327,  the  following:  "It  may  be  said  generally  that  au- 
thority given  to  an  agent  to  ship  property  carries  with  it 
an  authority  to  accept  a  bill  of  lading  or  to  make  a  con- 
tract containing  exemptions  from  liability."  And  the  same 
author  says  on  page  328 :  "The  consignor  is  regarded  as 
the  agent  of  the  consignee  for  the  purpose  of  entering  into 
contracts  for  their  carriage." 

In  the  case  of  Seaif  vs.  Tobin,  an  English  case,  3  B. 
&  A.  D.  523,  the  court  says :  "That  the  consignee,  by 
taking  the  goods,  adopted  the  contract,  that  is,  the  con- 
tract in  the  bill  of  lading,  whereby  the  master  agreed  with 
the  shipper  to  deliver  the  goods  to  the  consignee,  he  pay- 
ing demurrage  and  freight." 

From  those  authorities  it  would  seem  clear  that  when 
Mr.  Powell  bought  the  lumber  of  the  lumber  company  to 
be  delivered  on  board  the  cars  at  Kalkaska,  he  thereby 


authorized  the  lumber  company  as  his  agent,  to  make  a 
contract  of  shipment  with  the  railroad  company.  It  makes 
no  difference  that  he  never  saw  the  contract.  A  principal 
is  bound  by  the  acts  of  his  agent  within  the  scope  of  the 
agent's  authority.  His  ignorance  of  what  his  agent  has 
done,  of  course,  does  not  release  him. 

I  think,  therefore,  that  Mr.  Powell  was  bound  by  this 
contract  and  became  liable  to  pay  the  car  service  charges 
after  the  forty-eight  hours,  and  that  the  railroad  company 
has  a  right  to  hold  the  goods  until  the  charges  were  paid. 


RAILROAD    COMMISSION    OP   THE    STATE    OF 
ALABAMA. 


MAY,  1891. 


HENRY  R.  SHORTER, 

President  Railroad  Commission  of  Alabama. 

W.  C.  TUNSTALL, 

Associate  Commissioner. 


Youngblood  &  Ehrman,  lumber  dealers  of  Birming- 
ham, Ala.,  May  8,  1891,  applied  to  the  above-named  com- 
mission for  relief  from  the  demurrage  rules. 

In  dismissing  the  complaint  the  commissioner  used 
these  words :  "When  the  charge  is  made  by  a  railroad 
company  only  for  the  detention  of  cars  and  holding  the 
side  tracks  beyond  a  reasonable  time  after  arrival  and  no- 
tice given  to  consignees,  such  detention  being  by  the  neg- 
ligence or  delay  by  the  patron,  we  are  of  the  opinion  that 
a  charge  for  such  detention  and  use  of  the  track,  reason- 
able in  amount,  is  lawful  and  may  be  properly  collected 
by  the  carrying  company." 


SUPREME      COURT      OF      GEORGIA,      NO.      17 
AUGUSTA,  OCTOBER,  1891. 


88  GEORGIA,  563. 


MILLER  &  CO. 

VS.     . 
THE  GEORGIA  RAILWAY  CO. 

OPINION  BY  -HON.  JUSTICE  SIMMONS. 


By  the  Court: 

1.  It  is  competent  for  a  common  carrier  whose  cus- 
tomers at  their  option  have  the  privilege  of  unloading  for 
themselves  the  vehicles  in  which  their  freights  are  shipped, 
to  adopt  and  enforce  a  reasonable  regulation  as  to  the 
time  within  which  the  vehicles  may  be  unloaded  free  of 
any  expense  for  storage,  and  to  fix  a  reasonable  rate  per 
day  at  which  storage  will  thereafter  be  charged  for  the  use 
of  such  vehicles  so  long  as  they  remain  unloaded. 

2.  A  rate  of  one  dollar  per  day  for  each  railroad  car 
thus  devoted  to  the  use  of  storing  freight  is  not  necessar- 
ily unreasonable  because  cars  are  of  different  sizes  and 
vary  in  capacity,  nor  because  a  fraction  of  a  day  is  charged 
for  as  a  whole  day,  nor  because  the  customary  rate  of  stor- 
age in  warehouses  or  elevators  is  much  lower;  nor  is  it,  as 
matter  of  law,  unreasonable  for  any  cause. 

3.  A  particular  common  carrier,  though  a  corpora- 
tion, makes  a  regulation  its  own  by  adopting  it  and  act- 
ing upon  it,  irrespective  of  the  source  from  whence  it  is 
derived ;  and  therefore,  that  it  was  promulgated  by  a  per- 
son or  board  of  persons  representing  a  combination  of 
such  carriers  would  make  no  difference. 

4.  As  between  the  carrier  and  customers  who  have 
notice  of  the  regulation  before  shipments  are  made,  the 


regulation  is  operative  whether  indicated  upon  bills  of  lad- 
ing or  not,  and  whether  the  shipments  are  made  to  the 
order  of  the  consignor  with  the  customary  direction  to 
notify  the  customer,  or  directly  to  the  customer  himself. 

5.  In  construing  the  phraseology  of  a  regulation  ex- 
pressed in  this  language,  "it  being  understood  that  said  car 
or  cars  are  to  be  placed  and  remain  accessible  to  the  con- 
signee for  the  purpose  of  unloading  during  the  period  in 
which  held  free  of  demurrage,  and  that  when  the  period 
for  such  demurrage  charge  commences,  they  are  to  re- 
main accessible  to  the  consignee  for  unloading  purposes," 
the  course  and  exigenciea  of  business  are  necessarily  to  be 
regarded;  and  hence  the  cars,  after  their  arrival  at  desti- 
nation, though  not  kept  accessible  at  every  moment  of 
time,  are  to  be  treated  as  being  and  remaining  accessible 
if  the  carrier  is  always  ready  to  render  them  so  within  the 
shortest  practicable  time,  not  longer  than  a  few  hours, 
after  being  notified  that  the  customer  is  ready  to  unload. 
Judgment  affirmed. 

The  Georgia  Railroad  Company  sued  Miller  &  Com- 
pany for  the  sum  of  $892,  besides  interest,  the  declaration 
containing  two  counts,  as  follows :  (1)  "On  the  first  of 
January,  1890,  and  on  various  days  thereafter  up  to  the 
time  of  filing  this  complaint,  petitioner  stored  on  its  tracks 
in  said  county  certain  car-loads  of  corn,  wheat,  grain  and 
other  produce,  at  the  special  instance  and  request  of  said 
Miller  &  Company,  by  means  whereof  said  Miller  &  Com- 
pany became  indebted  to  your  petitioner  for  said  storage 
at  the  rate  of  one  dollar  per  day  for  each  and  every  of  said 
carloads,  amounting  to  the  aforesaid  sum  of  $892.  (2) 
Your  petitioner  further  shows  that  said  Miller  &  Company 
is  further  indebted  to  your  petitioner  in  the  sum  of  $892, 
besides  interest ;  for  that  heretofore,  to  wit,  before  the  first 
day  of  January,  1890,  your  petitioner,  who  is  a  common 
carrier  of  goods  and  merchandise,  made  and  put  in  opera- 
tion a  reasonable  rule  or  regulation  for  the  conduct  of  its 
business,  of  which  rule  or  regulation  said  Miller  &  Com- 
pany had  notice,  by  virtue  of  which  said  Miller  &  Com- 
pany became  liable  to  pay  to  your  petitioner  the  sum  of 
one  dollar  for  every  day  commencing  forty:eight  hours 
after  notice  of  arrival,  on  each  and  every  carload  of  prop- 
erty stored  by  your  petitioner  on  its  tracks  or  elsewhere. 


10 

Your  petitioner  shows  that  after  said  first  day  of  January, 
1890,  and  up  to  the  time  of  filing  this  complaint,  your  peti- 
tioner has  so  stored  a  large  number  of  carloads  of  prop- 
erty, a  schedule  of  which  is  hereunto  annexed;  by  means 
whereof  said  Miller  &  Company  have  become  indebted  to 
your  petitioner  in  the  sum  of  $892,  besides  interest.  Your 
petitioner  shows  that  said  Miller  &  Company  fail  and  re- 
fuse to  pay  said  sum,"  etc. 

The  rule  or  regulation  here  referred  to  is  as  follows : 

DEMURRAGE  RULES. 

CONCERNING  LOADED  CARS  TO  BE  UNLOADED 
BY  CONSIGNEES. 

"Bulk  meats,  bulk  grain,  hay,  cotton  seed,  lumber, 
lime,  coal,  coke,  sand,  brick,  stone,  wood  and  such  other 
freights  in  bulk  or  otherwise,  as  it  may  be  a  stipulation 
of  the  rates  thereupon,  or  contract  for  the  transportation 
thereof,  or  where  it  is  the  custom  for  the  cars  to  be  loaded 
and  unloaded  by  the  owners  of  the  property,  which  is  not 
unloaded  from  the  cars  containing  it  in  forty-eight  hours, 
not  including  Sundays  or  legal  holidays,  computed  from 
ten  o'clock  a.  m.  of  the  day  following  the  day  of  arrival, 
shall  be  subjected  thereafter  to  a  charge  for  demurrage 
of  one  dollar  for  each  day  or  fraction  of  a  day  that  said 
car  or  cars  remain  loaded  in  the  possession  of  the  com- 
pany, by  whom  to  be  delivered  as  the  last  carrier  at  in- 
terest ;  it  being  understood  that  said  car  or  cars  are  to  be 
placed  and  remain  accessible  to  the  consignee  for  the  pur- 
pose of  unloading  during  the  period  in  which  held  free 
of  demurrage,  and  that  when  the  period  of  such  demurrage 
charges  commences  they  are  to  remain  accessible  to  the 
consignee  for  unloading  purposes." 

The  jury  found  in  favor  of  the  plaintiff,  and  the  de- 
fendants made  a  motion  for  a  new  trial,  which  was  over- 
ruled, and  they  excepted.  Without  undertaking  to  dis- 
cuss separately  and  in  their  order  the  numerous  grounds 
of  the  motion,  it  is  sufficient  to  say  that,  in  addition  to  the 
general  objections  that  the  verdict  is  contrary  to  law  and 
the  evidence,  they  complain  in  substance  as  follows : 

(1)  That  as  matter  of  law,  a  railroad  company  is  not 
entitled  to  charge  "demurrage"  or  storage  on  cars  remain- 


II 


ing  unloaded  on  its  tracks,  and  hence  the  rule  in  question 
is  invalid  and  the  defendants  are  not  subject  to  the  charges 
recovered.  (2)  That  the  charge  fixed  by  this  rule  is  un- 
reasonable. (3)  That  the  rule  was  not  promulgated  by 
the  proper  authority,  but  emanated  from  a  combination 
of  persons  other  than  the  board  of  directors  of  the  Georgia 
Railroad.  (4)  That  the  regulation  is  inoperative  because 
not  indicated  upon  the  bill  of  lading.  (5)  That  the  cars 
were  not  accessible  during  the  whole  period  for  which  de- 
murrage was  charged. 

1.  It  is  the  undoubted  right  of  a  common  carrier  to 
adopt  and  enforce,  as  between  itself  and  its  customers,  any 
reasonable  regulation  for  the  conduct  of  its  business,  the 
purpose  and  effect  of  which  is  the  protection  of  the  car- 
rier and  the  benefit  of  the  public.  The  rule  in  question, 
we  think,  falls  clearly  within  the  scope  of  this  power.  It 
seeks  to  prevent  the  diversion  and  detention  of  cars  from 
the  legitimate  work  of  transportation,  as  well  as  to  secure 
compensation  for  service  not  otherwise  paid  for,  by  pre- 
scribing, in  cases  where  by  contract  or  custom  the  car- 
rier is  under  no  duty  to  unload  the  cars  but  they  are  to  be 
unloaded  by  the  cu'stomer,  a  rate  per  diem  in  the  nature 
of  a  charge  for  storage,  to  begin  at  a  certain  time  after 
the  cars  have  been  delivered  to  the  customer  or  placed  at 
his  disposal  for  unloading.  Such  a  regulation  cannot  be 
regarded  as  unreasonable  so  long  as  a  reasonable  time  is 
allowed  for  unloading  and  so  long  as  the  charge  for  the 
use  of  the  cars  beyond  that  time  is  not  excessive.,  The 
law  compels  the  carrier  to  receive  the  goods  of  the  public 
and  to  transport  and  deliver  them  within  a  reasonable 
time.  (Code,  sec.  2029;  2  Am.  &  Eng.  Enc.  of  L..  Tit. 
Carriers,  p.  787.)  To  do  this  it  is  necessary  that  the  means 
of  transportation  shall  be  under  the  carrier's  control,  and 
that  after  the  duty  of  carriage  has  been  performed,  its 
vehicles  shall  not  be  converted  into  storehouses,  at  the 
will  of  consignees,  to  remain  such  indefinitely  and  without 
compensation.  If  no  check  could  be  placed  upon  such  de- 
tention, it  is  plain  that  the  business  of  transportation 
would  be  at  the  mercy  of  private  interest  or  caprice,  and 
that  carriers,  thus  hampered  in  their  facilities  and  unable 
to  foresee  the  time  or  extent  to  which  their  vehicles  would 
be  diverted  from  the  work  of  carriage,  could  not  provide 
properly  for  the  demands  of  traffic  or  perform  with  dis- 


12 


patch  their  legitimate  function.  It  would  place  upon  the 
carrier  the  burden  and  expense  of  supplying  numerous 
vehicles  not  need,ed  for  the  hauling  of  freights,  thus  re- 
quiring it  to  provide  extra  facilities,  as  well  as  to  render 
extra  service,  without  compensation  beyond  that  received 
for  transportation.  It  would  result  in  the  accumulation  of 
cars  on  the  carrier's  tracks  and  the  obstruction  in  a  great- 
er or  less  degree  of  the  movement  and  unloading  of  trains. 
Not  only  would  loss  ensue  to  the  carrier,  but  consignees 
and  shippers  in  general  and  the  people  at  large  must  suffer 
seriously  from  this  hindrance  to  the  due  and  regular 
course  of  transportation.  In  this  matter  the  public  have 
rights  paramount  to  those  of  any  individual  or  class  of  in- 
dividuals, and  the  business  of  the  common  carrier  must  be 
so  conducted  so  as  to  subserve  the  general  interest  and 
convenience.  Especially  is  this  true  as  to  railroad  com- 
panies, in  view  of  the  important  franchises  granted  them 
by  the  public,  and  the  use  and  control  thus  acquired  of 
highways  upon  which  the  commerce  of  the  country  is  so 
largely  dependent. 

The  need  of  regulations  of  the  kind  in  question  is  well 
illustrated  by  the  evidence  in  this  case.  The  general  man- 
ager of  the  plaintiff  testified  that  before  this  rule  was 
adopted,  consignees  were  often  dilatory  in  removing 
freight  from  the  cars  in  which  it  was  shipped,  and  "the  cars 
were  detained  day  after  day,  and  days  lengthened  into 
weeks,  until  our  transportation  work  was  subjected  to  im- 
measurable embarrassment;  the  transportation  of  the 
company  was  well  nigh  paralyzed, — not  for  the  lack  of 
cars,  for  we  had  plenty,  but  because  our  cars  were  con- 
verted into  warehouses.  The  trouble  grew  and  finally  cul- 
minated in  a  threatened  blockage  throughout  the  country. 
It  has  been  a  part  of  our  experience  to  be  threatened  with 
suit  by  the  shipper  for  not  moving  the  freight  promptly. 
We  are  supposed  to  always  have  cars  ready  to  transport 
any  freight  that  is  offered;  we  endeavor  to  make  proper 
arrangements  to  do  so;  but  the  trouble  was  that  when  A 
had  freight  to  ship  B  had  our  cars  and  we  could  not  get 
them." 

It  was  contended  by  counsel  for  the  plaintiff  in  error 
that  the  railroad  company  could  unload  the  cars  into  a 
warehouse  or  elevator,  and  thus  avoid,  detention.  On  the 
other  hand,  counsel  for  the  railroad  company  contended 


13 

that  in  the  cases  provided  for  by  this  rule,  that  is,  where 
it  is  a  stipulation  of  the  rates  or  contract  for  transporta- 
tion, or  is  the  custom  for  the  cars  to  be  loaded  and  unload- 
ed by  the  owners  of  the  property,  it  would  be  a  breach  of 
contract  if  the  company  were  to  unload,  which  would  sub- 
ject it  to  at  least  nominal  damages.  We  do  not  think  it 
material,  as  affecting  the  right  to  make  a  charge  of  this 
character,  that  the  goods  remain  in  cars  instead  of  being 
put  into  a  warehouse.  It  is  well  settled  that  the  carrier, 
in  addition  to  its  compensation  for  the  carriage  of  goods, 
has  the  right  to  charge  for  their  storage  and  keeping,  as  a 
warehouseman,  for  whatever  time  they  remain  in  its  cus- 
tody after  reasonable  opportunity  has  been  afforded  the 
owner  to  remove  them.  (Hutchinson  Carriers,  sec.  378; 
Southwestern  R.  Co.  vs.  Felder,  46  Ga.  433.)  And  we 
think  where  the  carrier's  duty  ends  with  the  transportation 
of  the  car  and  its  delivery  to  the  customer,  and  no  further 
service  is  embraced  in  the  contract,  the  carrier,  after  a 
reasonable  time  has  been  allowed  for  unloading,,  is  as 
much  entitled  to  charge  for  the  further  use  of  its  car  as 
it  would  be  for  the  use  of  its  warehouse.  We  know  of 
no  good  reason  why  it  should  be  restricted  to  the  latter 
method  of  storage.  There  is  no  law  which  inhibits  the 
use  of  cars  for  this  purpose,  or  which  requires  unloading 
and  removal  of  the  goods  to  some  other  structure  before 
any  charge  for  storage  can  attach.  This  method  of  stor- 
age may  in  many  cases  be  as  effectual  as  any  other.  In- 
deed, it  may  serve  the  customer's  interest  and  convenience 
much  better  to  have  the  car  placed  at  his  own  place  of 
business  where  he  may  unload  it  himself,  or  where  it  may 
be  unloaded  by  purchasers  as  the  goods  are  sold,  thus 
saving  drayage  and  other  expenses,  than  to  have  it  un- 
loaded by  the  carrier  and  the  goods  stored  elsewhere  at 
the  customer's  expense.  And  if  a  customer  whose  duty 
it  is  to  unload,  and  who,  failing  to  do  so  within  a  reason- 
able time,  accepts  the  benefit  of  storage  in  a  car,  by  re- 
questing or  permitting  the  carrier  to  continue  holding  it 
unloaded  in  his  service  and  subject  to  his  will  and  conven- 
ience as  to  the  time  of  unloading,  he  cannot  be  heard  to 
complain  of  the  method  of  storage  and  to  deny  the  right 
to  any  compensation  at  all  for  this  service  on  the  ground 
that  some  other  method  was  not  resorted  to.  He  may 
insist  that  the  rate  fixed  shall  not  be  unreasonable  or  ex- 
cessive, but  the  law  cannot  be  invoked  to  declare  that  no 


14 

compensation  whatever   shall  be  charged   for   such  extra 
service. 

It  was  contended  by  counsel  for  the  plaintiff  in  error 
that  ''demurrage,"  which  is  the  designation  given  to  this 
charge  by  the  rule  in  question,  is  allowed  only  in  maritime 
law,  and  cannot  be  demanded  by  a  railroad  company  in  the 
absence  of  a  stipulation  therefor  in  the  bill  of  lading.  And 
in  support  of  this  view  the  cases  of  Chicago  &  N.  W.  Ry. 
Co.  vs.  Jenkins,  103  111.,  588,  and  Burlington  &  M.  R.  Co. 
vs.  Chicago  Lumber  Co.,  15  Neb.,  391,  are  cited.  In  the 
former  of  these  cases  it  is  said :  "The  right  to  demurrage, 
if  it  exists  as  a  legal  right,  is  confined  to  the  maritime  law, 
and  only  exists  as  to  carriers  by  sea-going  vessels.  But 
it  is  believed  to  exist  alone  by  force  of  contract.  All  such 
contracts  of  affreightment  contain  an  agreement  for  de- 
murrage in  case  of  delay  beyond  the  period  allowed  by 
the  agreement,  or  the  custom  of  the  port  allowed  the  con- 
signee- to  receive  and  remove  the  goods.  But  the  mode 
of  doing  business  by  the  two  kinds  of  carriers  is  essen- 
tially different.  Railroad  companies  have  warehouses  in 
which  to  store  freights;  owners  of  vessels  have  none. 
Railroads  discharge  cargoes  carried  by  them;  carriers  by 
ship  do  not,  but  it  is  done  by  the  consignee.  The  masters 
of  vessels  provide  in  the  contract  for  demurrage,  while 
railroads  do  not;  and  it  is  seen  that  these  essential  differ- 
ences are,  under  the  rules  of  the  maritime  law,  wholly  in- 
applicable to  railroad  carriers."  The  decision  in  the  Ne- 
braska case  does  not  go  into  any  discussion  of  the  ques- 
tion, but  merely  cites  and  follows  the  holding  of  the  Illi- 
nois court.  In  our  opinion  the  reasoning  above  quoted 
is  inconclusive.  We  see  no  satisfactory  reason  why  car- 
riers by  railroads  should  not  be  entitled  to  compensation 
for  the  unreasonable  delay  or  detention  of  their  vehicles, 
as  well  as  carriers  by  sea.  What  we  have  already  said, 
we  think,  is  a  sufficient  answer  to  the  reason  assigned,  that 
railroads  have  warehouses  in  which  to  store  freights.  And 
the  reason  that  "railroads  discharge  cargoes  carried  by 
them"  and  "carriers  by  ship  do  not  but  it  is  done  by  the 
consignee,"  of  course  cannot  operate  as  to  the  cases  pro- 
vided for  by  this  rule,  which  by  its  terms  applies  only 
where  the  unloading  is  to  be  done  by  the  owners  of  the 
property.  Nor  is  it  settled  that  the  right  to  demurrage 
in  maritime  law  exists  only  by  express  contract.  In  this 


15 

country  the  courts  have  repeatedly  declined  to  follow  the 
rulings  of  the  English  common  law  courts  on  this  subject, 
and  have  held  that  the  ship  owner  has  a  lien  upon  the 
cargo  for  demurrage,  notwithstanding  the  absence  of  any 
stipulation  therefor  in  the  bill  of  lading.  (5  Am.  &  Eng. 
Enc.  of  L.,  Tit.  Demurrage,  p.  546;  Porter  Bills  of  Lad- 
ing, sec.  356.  See  also  Huntley  vs.  Dows,  55  Barb.,  310, 
and  Hawgood  vs.  1310  Tons  of  Coal,  21  Fed.  Rep.,  681, 
and  cases  there  cited.) 

But  we  are  not  controlled  by  the  principles  which  gov- 
ern as  to  demurrage  under  the  maritime  law.  The  adop- 
tion by  the  railroad  company  of  the  term  "demurrage"  as 
a  designation  for  this  charge,  does  not  require  us  to  resort 
to  that  law  as  a  standard  for  testing  the  validity  of  the 
rule.  We  are  to  look  to  the  real  substance  and  effect  of 
the  rule,  rather  than  to  analogies  suggested  by  the  tech- 
nical designation  which  the  carrier  in  this  instance  has 
seen  fit  to  adopt.  To  hold  that  because  the  conditions  of 
carriage  by  sea  are  different,  no  charge  under  this  name 
can  be  enforced  by  a  carrier  by  land,  or  that  if  allowed,  it 
must  be  governed  by  the  rules  of  the  marine  law,  would 
be  to  adopt  a  narrow  and  merely  technical  view,  ignoring 
well  recognized  grounds  of  public  policy  and  the  right  of 
the  carrier  to  prescribe  reasonable  rules  and  regulations 
for  its  own  safety  and  the  benefit  of  the  public. 

The  instances  are  few  in  which  regulations  similar  to 
the  one  in  question  have  been  passed  upon  by  the  courts. 
The  only  cases  we  have  found  in  which  the  right  of  a  rail- 
road company  to  make  a  charge  of  this  kind  is  denied,  are 
the  ones  above  referred  to.  On  the  other  hand,  the  right 
is  sustained  by  the  Supreme  Court  of  Massachusetts. 
(Miller  vs.  Mansfield,  112  Mass.,  260.)  See  also  a  full  and 
able  discussion  of  the  question  by  Toney,  J.,  of  the  Law 
and  Equity  Court  of  Louisville,  Kentucky,  in  a  decision 
which  has  appeared  since  the  judgment  in  the  present  case 
was  announced.  (Kentucky  Wagon  Mfg.  Co.  vs.  Louis- 
ville &  Nashville  R.  Co.,  11  Rwy.  &  Corp.  Law  Jour.,  49.) 

2.  We  cannot  as  matter  of  law  say  that  the  rate  of  $1 
per  day  for  each  car  is  unreasonable.  It  is  not  necessarily 
unreasonable  because  the  cars  vary  in  capacity,  nor  be- 
cause a  part  of  a  day  is  charged  for  as  a  whole  day.  Nor 
can  we  hold  that  the  customary  rates  for  storage  in  ware- 


i6 

houses  and  elevators  must  be  the  measure  of  compensa- 
tion where  the  storage  is  in  cars  on  the  tracks  of  a  rail- 
road. Indeed,  if  it  be  a  legitimate  object  of  this  rule  to 
prevent  the  diversion  of  cars  from  the  work  of  carriage,  it 
would  seem  but  proper  that  the  charge  for  their  use  when 
detained  as  a  means  of  storage,  should  not  be  such  as  to 
encourage  customers  to  adopt  that  means  instead  of  the 
more  regular  and  usual  methods.  Moreover,  there  was 
no  evidence  to  show  that  the  rate  fixed  by  this  rule  was 
higher  than  those  customary  for  storage  of  other  kinds. 
On  the  contrary,  there  was  evidence  tending  to  show  that 
storage  in  the  car,  at  the  rate  fixed  by  the  rule,  might  be 
much  less  expensive  than  storage  elsewhere,  the  general 
manager  of  the  railroad  company  testifying  that  the  mod- 
ern car  carries  from  50,000  to  60,000  pounds,  and  that 
storage  in  a  company's  depot  of  a  car  load  of  50,000 
pounds  would  amount  to  $1.25  per  day.  He  testified  fur- 
ther: "The  rate  of  $1  per  day  does  not  compensate  us 
for  the  detention  of  the  cars,  and  it  was  simply  to  induce 
the  shipper  to  unload  that  the  rule  was  passed." 

3.  That  the   rule  was   promulgated  by  a  person   or 
board  of  persons  representing  a  combination  of  carriers, 
did  not  impair  its  effect  as  a  regulation  of  this  particular 
company.     A    common    carrier    though    a    corporation, 
makes  a  regulation  its  own  by  adopting  it  and  acting  upon 
it  irrespective  of  the  source  from  whence  it  is  derived. 

4.  Where  a  regulation  of  this  character  is  known  to 
the   customer   before   the    contract   for   transportation   is 
made,  it  is  to  be  presumed,  in  the  absence  of  any  evidence 
to  the  contrary,  that  the  parties  contracted  with  reference 
to    it   (Miller  vs.    Mansfield,  supra,)    and    it   is    operative 
whether  indicated  upon  bills  of  lading  or  not,  and  whether 
the  shipments  are  made  to  the  order  of  the  consignor  with 
the  customary  direction  to  notify  the  customer,  or  directly 
to  the  customer  himself. 

5.  The  plaintiff's  mode  of  delivery  of  the  'cars  to  the 
defendants  was  to  place  them  on  a  certain  track  "desig- 
nated as  belonging  to  the  Augusta  &  Summerville  Rail- 
road" and  known  as  "track  38;"  from  which  point  they 
went  "into  the  possession  of  the  Central  Railroad,"  upon 
whose  side  track  in  another  part  of  the  city,  the  defend- 
ants' place  of  business  was  situated.     Cars  were  not  deliv- 


ered  on  track  38  until  the  freight  was  paid  and  the  bill  of 
lading  surrendered.  Until  then  they  were  inaccessible  for 
unloading,  being  kept  elsewhere  in  the  plaintiff's  yard. 
After  payment  of  the  freight,  the  defendant  could  at  any 
time  have  his  cars  moved  where  they  would  be  accessible, 
but  sometimes  it  would  take  from  one  to  five  hours  after 
the  freight  was  paid  before  they  could  be  placed  at  the 
point  of  delivery.  It  was  contended  that  the  time  thus  re- 
quired for  placing  the  cars  in  position  should  not  be  in- 
cluded in  computing  the  time  which  should  run  against  the 
defendants  under  the  rule  in  question,  the  rule  containing 
this  language,  to  wit :  "It  being  understood  that  said  car 
or  cars  are  to  be  placed  and  remain  accessible  to  the  con- 
signee for  the  purpose  of  unloading  during  the  period  in 
which  held  free  of  demurrage,  and  that  when  the  period 
of  such  demurrage  charges  commences,  they  are  to  re- 
main accessible  to  the  consignee  for  unloading  purposes." 
Certain  instructions  of  the  court  on  this  subject  and  the 
refusal  to  charge  thereon  as  requested  by  the  defendants, 
were  the  basis  of  several  assignments  of  error,  which  will 
be  found  set  out  in  the  reporter's  statement.  Taking  the 
whole  charge,  in  connection  with  the  evidence,  we  think 
the  law  applicable  to  this  part  of  the  case  was  fairly  pre- 
sented. The  court,  having  instructed  the  jury,  in  sub- 
stance, that  if  the  defendant  had  notice  of  this  rule  or  regu- 
lation, and  the  goods  were  shipped  under  a  contract  that 
they  were  to  be  unloaded  by  the  consignees,  and  the  plain- 
tiff notified  the  consignees  of  the  arrival  of  the  car  and  of 
its  readiness  to  deliver  the  goods,  and  the  consignees  did  f 
not  receive  and  unload  them  within  the  time  stipulated 
by  the  rule,  the  defendants  would  be  liable  for  the  charge 
fixed  by  the  rule  for  the  detention  of  cars,  added  the  fol- 
lowing: "The  railroad  will  have  complied  with  that  rule 
and  regulation  if  you  find  from  the  testimony  that  it  placed 
these  cars  at  a  point  where  they  were  accessible  to  the 
consignees,  and  allowed  them  to  remain  there  during  the 
time  fixed  by  the  railroad  when  they  would  be  free  from 
demurrage,  or  where  it  gave  notice  that  it  was  ready  to 
place  them  in  such  position.  The  mere  giving  notice,  if 
there  was  evidence  that  it  was  not  ready  to  place  them  in 
that  position,  would  not  avail,  but  if  you  find  that  the  cars 
were  in  a  position  where  they  could  be  placed  in  an  acces- 
sible place,  and  the  road  offered  to  place  them,  by  sending 
notice  that  it  was  ready,  then  that  would  be  a  substantial 


i8 

compliance  with  the  rule  and  regulation.  But  if  the  con- 
signees elected  to  delay  and  not  receive  them,  they  would 
be  liable  for  the  charges  under  the  rule."  Also :  "If  you 
are  satisfied  from  the  testimony  that  the  cars,  up  to  the 
time  of  actual  delivery  or  taking  possession,  were  inacces- 
sible, that  the  railroad  could  not  comply  with  its  offer  and 
that  the  delay  was  not  the  fault  of  the  defendants,  then 
no  demurrage  under  this  rule  could  be  enforced,  and  your 
verdict  would  be  for  the  defendants."  We  think  the  in- 
structions complained  of,  as  to  substantial  compliance  with 
the  rule,  read  in  connection  with  the  instructions  above 
quoted,  give  a  reasonable  and  proper  interpretation  of 
that  part  of  the  rule  which  relates  to  delivery  at  a  point 
accessible  to  the  consignee.  In  construing  its  phrase- 
ology, the  course  and  exigencies  of  business  are  necessar- 
ily to  be  regarded,  and  hence,  the  cars,  after  their  arrival 
at  destination,  though  not  kept  accessible  at  every  mo- 
ment of  time,  are  to  be  treated  as  being  and  remaining  ac- 
cessible if  the  carrier  is  always  ready  to  render  them  so 
within  the  shortest  practicable  time,  not  longer  than  a  few 
hours,  after  being  notified  that  the  customer  is  ready  to 
unload.  There  is  no  evidence  in  the  record  that  the  .cars 
were  not  at  all  times  accessible,  in  this  sense,  or  that  there 
was  any  undue  or  unnecessary  delay  in  placing  them  in 
position  for  unloading,  after  notice  from  the  defendants 
that  they  were  ready  to  receive  them. 

6.  The  evidence  is  sufficient  to  uphold  the  verdict. 
Judgment  affirmed. 


Clerk's  Office,  Supreme  Court  of  Georgia, 

Atlanta,  Ga.,  June  16,  1892. 

I  hereby  certify  that  the  foregoing  pages  hereto  at- 
tached contain  a  true  and  complete  copy  of  the  opinion  of 
the  Supreme  Court  of  Georgia  in  the  case  therein  stated. 

Witness  my  signature  and  the  seal  of  said  Court  here- 
to affixed,  the  day  and  year  above  written. 

[Seal.]  Z.  D.  HARRISON,  Clerk. 


LAW  ANJD  EQUITY  COURT,  LOUISVILLE,.  KEN- 
TUCKY, NOVEMBER,  1891. 
NO..  4103. 


11  RWY.  &  CORP.  LAW  JOUR.  49. 

50  AM.  AND  ENG.  CASES,  90. 

98  KY.,  152. 

KENTUCKY  WAGON  MFG.  CO. 

VS. 
LOUISVILLE  £  NASHVILLE  R.  R.  CO. 


OPINION  OF  HON.  STERLING  B.  TONEY,  JUDGE. 


The  Kentucky  Wagon  Mfg.  Co.  is  a  concern  of  Louis- 
ville owning  their  own  side  tracks,  employing  on  an  aver- 
age of  four  hundred  men  per  day  and  receives  from  fifteen 
hundred  to  two  thousand  car  loads  of  freight  per  year. 
Refusing  to  pay  demurrage  the  L.  &  N.  R.  R.  Co.  refused 
to  deliver  to  them  any  loaded  cars,  hence  this  suit  to  enjoin 
the  L.  &  N.  R.  R.  Co.  from  refusing  in  the  future  to  deliver 
cars  of  freight  to  them  on  account  of  non-compliance  with 
the  rules  of  the  Demurrage  Association. 

The  plaintiff  urges  six  grounds  of  impeachment  of  the 
demurrage  rules  to  prove  that  they  are  unreasonable  and 
therefore  not  binding  on  it,  to  wit: — 

1st.  That  the  period  of  forty-eight  hours  within  which 
it  is  required  to  unload  said  cars  is  arbitrary  and  unreason- 
able. 

2d.  That  the  charge  of  one  dollar  per  day  per  car  for 
the  detention  of  cars  after  the  expiration  of  said  forty-eight 
hours  is  excessive. 


20 


3d.  That  neither  the  plaintiff  or  any  other  shipper 
or  consignee  was  consulted  by  the  defendants  in  the  fram- 
ing of  said  rules. 

4th.  That  there  is  no  reciprocity  of  indemnity  in  said 
rules  in  favor  of  plaintiff  for  not  promptly  furnishing  and 
delivering  cars. 

5th.  That  the  defendants,  by  entering  into  the  Demur- 
rage Association,  have  surrendered  their  corporate  auton- 
omy and  functions,  and  have  thereby  agreed  to  abolish 
competition,  and  that  for  this  reason  the  said  rules  are 
illegal. 

6th.  That  under  the  demurrage  rules  a  delivering  road 
may  make  demurrage  charges  on  cars  that  do  not  belong 
to  it  but  to  other  companies. 


BY  THE   COURT. 

1st.  From  the  testimony  and  of  the  action  of  the 
various  Railroad  Commissioners  and  of  the  decision  of 
Judge  Pryor  (of  the  Court  of  Appeals,  State  of  Kentucky), 
upon  the  testimony,  the  Court  feels  warranted  in  holding 
that  the  time  fixed  by  the  Demurrage  Association  for 
unloading  cars  is  not  unreasonable,  and  no  one  consignee 
has  the  right  to  advance  the  peculiar,  rare  and'  exceptional 
circumstances  of  his  peculiar  case  to  justify  his  violation 
of  the  rule. 

2d.  The  life  of  the  railroads  is  in  their  rolling  stock, 
and  it  seems  to  the  Court,  upon  the  proof  to  be  incon- 
testibly  established,  that  the  demurrage  charge  of  a  dollar 
a  day  for  the  detention  of  cars  is  extremely  reasonable. 

3d.  It  is  not  perceived  in  what  manner  or  upon  what 
principle  the  reasonableness  of  the  rules  or  regulations  com- 
plained of  can  be  affected,  from  the  fact  that  the  plaintiff 
was  not  consulted  in  framing  the  said  rules. 

4th.  In  making  necessary  and  reasonable  rules  and 
regulations  to  control  the  traffic  business  of  railroads  in 
their  dealings  with  shippers  and  consignees,  it  is  difficult 
to  understand  how  a  rule  or  regulation,  which  is  itself  reas- 
onable and  essential  to  the  proper  conduct  of  the  business, 


21 

can  be  assailed  as  unreasonable  because  there  are  not  self- 
imposed  penalties  upon  the  carriers  contained  in  said  rules 
for  possible  delinquencies  on  their  part. 

If  the  regulation  be  reasonable  the  shipper  is  bound 
by  it  and  that  is  all  there  is  in  it. 

5th.  What  the  Demurrage  Association  demands  is 
simply  the  legitimate  use  of  the  cars  and  service  of  the  track 
upon  which  the  cars  are  operated.  It  is  not  organized  in 
antagonism  to  legitimate  competition. 

6th.  Each  company  uses  the  cars  of  the  other  roads 
which  come  upon  its  tracks,  while  in  its  possession,  just  as 
it  does  its  own,  and  in  point  of  law  and  in  point  of  facts 
is  the  special  owner  and  bailee  of  such  car  or  cars  until 
it  returns  them. 

We  find  that  none  of  the  six  objections  urged  by  the 
plaintiff  are  sustained,  either  by  evidence  or  by  any  known 
principle  of  law  applicable  thereto.  But  the  plaintiff  insists 
that  even  conceding  that  the  rules  are  reasonable,  the 
defendants  have  no  right  to  withhold  loaded  freight  cars 
consigned  to  it  upon  a  tender  by  it  to  said  defendants  of 
the  specific  freight  charges  upon  said  cars.  If  the  rules 
of  the  Demurrage  Association  are  reasonable,  the  plain- 
tiff ought  to  comply  with  them.  The  plaintiff  wrongfully 
refusing  compliance  with  the  defendant's  reasonable  rules 
is  the  cause  of  the  latter  refusing  to  switch  cars,  and  the 
plaintiff  is  therefore  not  entitled  to  equitable  relief.  Re- 
fusing to  do  equity,  it  cannot  claim  equity.  The  plaintiff's 
is  the  -greater  wrong  and  is  not  entitled  to  an  injunction, 
therefore,  let  judgment  be  entered  accordingly. 


22 


THE  KENTUCKY  COURT  OF  APPEALS. 
OCTOBER,  1895. 

97  KY.— 32  S.  W.  R.  595. 


THE     KENTUCKY     WAGON     MANUFACTURING 
CO.,  APPELLANT, 

VS. 

THE  OHIO  &  MISSISSIPPI  RAILWAY  COMPANY, 
APPELLEE. 


APPEAL    FROM    THE    LOUISVILLE    LAW    AND 
EQUITY  COURT. 


ABSTRACT  OF  OPINION. 


First — There  may  be  a  reasonable  charge  by  a  com- 
mon carrier  for  the  detention  of  its  cars  by  the  consignee 
or  consignor  beyond  a  reasonable  time  in  which  to  load 
and  unload  them,  and  such  charges  may  be  imposed  and 
enforced  through  what  are  known  as  car  service  associa- 
tions, two  or  more  carriers  having  the  right  to  combine 
in  that  way  and  promulgate  and  enforce  reasonable  rules 
and  regulations  for  the  accomplishment  of  the  desired  ob- 
ject, all  having  the  right  to  do  jointly  what  each  might  do 
separately. 

Second — Whether  a  charge  of  one  dollar  per  day  or 
fraction  thereof  made  for  detention  of  cars  and  use  of  track 
on  cars  not  unloaded  within  forty- eight  hours  after  arrival, 
not  including  Sundays  and  legal  holidays,  and  on  empty 
cars  not  loaded  within  forty-eight  hours  after  being  placed, 
is  a  reasonable  charge,  and  the  time  fixed  for  loading  and 
unloading  is  a  reasonable  time,  are  questions  of  fact,  and 
on  these  issues  in  this  case,  the  preponderance  of  the  proof 
is  with  the  carriers.  And  it  is  no  objection  to  such  a  rule 


23 

that  no  exception  is  made  in  behalf  of  the  shipper  by  reas- 
on of  an  unfavorable  condition  of  the  weather,  as  the  rule 
must  in  the  first  instance  allow  time  enough  to  meet  all 
cases  likely  to  arise,  which  is  shown  to  be  the  case  here. 

Third — If  the  rules  of  such  an  association  are  reason- 
able, the  fact  that  the  shipper  was  not  consulted  in  fram- 
ing them  does  not  vitiate  them.  Nor  can  the  shipper  com- 
plain that  no  counter  penalties  are  provided,  the  carrier 
being  accountable  under  well  established  legal  principles 
for  any  dereliction  of  duty. 

Fourth — The  rule  fixing  a  uniform  charge  for  the 
detention  of  cars  does  not  violate  the  law  preventing  agree- 
ments among  rival  carriers  not  to  compete  with  each  other. 

Fifth — The  fact  that  under  the  car  service  rules  the 
delivering  road  is  authorized  to  collect  storage  charges 
on  cars  received  from  connecting  lines  affords  no  ground 
of  complaint  to  the  shipper,  the  company  having  the  right 
under  the  universal  practice  among  carriers  to  use  and  con- 
trol such  cars  as  its  own  property. 

Sixth — While  common  carriers,  members  of  a  car  ser- 
vice association,  have  no  right  to  refuse  to  receive  freight 
from,  or  switch  cars  for  a  shipper  because  he  owes  to  them 
or  to  other  members  of  the  association  car  service  fees 
which  he  refuses  to  pay,  or  because  he  and  other  shippers 
have  combined  to  resist  the  enforcement  of  the  reasonable 
rules  of  the  association,  yet  a  shipper  thus  in  default  cannot 
ask  the  aid  of  a  Chancellor  to  compel  the  carrier  to 
do  that  which  it  admits  it  is  its  duty  to  do,  and  which  it  is 
willing  to  do  upon  a  compliance  on  the  shipper's  part  with 
the  reasonable  rules  of  the  association.  The  shipper  hav- 
ing done  the  first  wrong  and  this  caused  the  wrong-doing 
of  the  carrier,  the  Chancellor  may  refuse  to  hear  him.  And 
especially  so,  when  as  in  this  case,  the  delivery  of  the  spec- 
ific cars  withheld  by  the  carrier  was  accomplished  by  the 
issual  of  a  mandatory  injunction  when  the  petition  was 
filed. 

Seventh — If  upon  any  particular  shipment  storage 
charges  have  accumulated  before  it  is  unloaded  by  the  con- 
signee, and  it  is  still  in  the  car  of  the  carrier,  it  may  be 
retained  until  the  regulation  is  complied  with  and  the 
charges  paid. 


OPINION  OF  THE  COURT  DELIVERED  BY 
JUDGE  HAZELRIGG. 

The  Kentucky  Wagon  Company  is  a  corporation  ex- 
tensively engaged  at  South  Louisville  in  the  business  of 
manufacturing  and  selling  wagons.  Its  works  are  located 
near  the  junction  of  the  tracks  of  the  Louisville  &  Nash- 
ville and  the  Louisville  Southern  Railroad  Companies,  and 
upon  its  yards  it  has  its  own  switches  and  side-tracks  con- 
necting with  each  of  these  roads  and  with  these  roads 
alone. 

It  receives  its  materials  in  car  load  lots,  and  sends  out 
much  of  the  finished  product  in  the  same  way.  These  rail- 
road companies,  the  one  or  the  other,  have  physical  con- 
nection with  every  other  railroad  entering  the  city  of  Louis- 
ville, and  are  under  contract  with  the  Wagon  Company  for 
a  stipulated  consideration  to  deliver  upon  the  side-tracks 
of  the  latter  all  loaded  cars  consigned  to  that  Company 
over  their  own  lines,  or  over  their  connecting  lines;  which 
cars  when  unloaded  by  the  Wagon  Company  the  carriers 
are  to  remove  free  of  charge. 

In  February,  1890,  the  two  roads  named,  together  with 
the  other  railways  entering  the  city  of  Louisville,  conceiv- 
ing that  their  patrons  who  handled  these  shipments  in  car 
load  lots  were  unreasonably  detaining  the  cars  of  the  car- 
riers, using  them  for  storage  purposes  and  otherwise  ma- 
terially impeding  the  service,  formed  what  is  known  in  the 
record  as  the  Louisville  Car  Service  Association;  and 
through  it  at  once  promulgated  certain  rules  and  regula- 
tions calculated  to  remedy  the  evil,  and  ensure  the  prompt 
unloading  of  the  consignments  and  consequent  prompt  re- 
turn of  the  cars. 

On  the  other  hand  the  shippers  conceding  that  the 
abuse  complained  of  had  in  fact  grown  up  not  through 
their  fault,  and  contending  that  the  association  of  the  car- 
riers was  illegal  and  wrongful,  and  the  rules  they  were  at- 
tempting to  enforce,  unreasonable  and  exorbitant,  formed 
a  counter  association  to  resist  their  enforcement.  The 
Wagon  Company  was  a  member  of  this  organization  and 
refusing  to  conform  to  the  rules  of  the  Car  Service  Asso- 
ciation, or  pay  the  charges  accumulating  against  it  by 


25 

reason  of  its  detention  of  cars,  for  more  than  48  hours 
after  delivery,  the  carriers  refused  to  deliver  freight  con- 
signed to  it  over  their  respective  lines. 

Whereupon  in  November,  1890,  the  Wagon  Company 
brought  this  action  in  equity  against  some  eleven  of  the 
railroad  companies  to  restrain  them  from  refusing  to  deliver 
to  it  on  its  side-tracks  because  of  its  non-compliance  with 
the  Car  Service  Rules  certain  designated  car-loads  of  freight 
ready  for  delivery,  and  from  so  refusing  in  the  future. 

The  original  order  which  issued  on  the  plaintiff's  peti- 
tion enjoined  the  defendants  from  further  refusing  to  deliv- 
er to  the  plaintiff  the  carloads  of  freight  held  by  them  re- 
spectively, but  thereafter  in  August,  1891,  and  after  much 
of  the  proof  had  been  taken  the  court  so  modified  the  order 
as  to  require  the  Wagon  Company  to  return  and  redeliver 
to  the  railway  companies  the  cars  delivered  by  them,  with- 
in the  time  prescribed  by  the  Car  Service  rules;  and  such 
seems  to  have  been  the  attitude  of  the  parties  upon  the  ren- 
dition of  the  final  judgment  herein,  in  December,  1891,  when 
the  Chancellor  refused  to  grant  the  relief  asked  by  the 
plaintiff,  dissolved  the  injunction  and  dismissed  the  peti- 
tion without  costs. 

The  question  to  be  determined  at  the  threshold  of  our 
investigation  of  this  case,  is  whether  or  not  the  rules  and 
regulations  of  the  associated  defendants  are  reasonable  and 
just,  and  such  as  the  plaintiff  ought  to  have  regulated  its 
business  by. 

Whether  if  reasonable,  the  carriers  might  enforce  them 
by  a  combination  or  association,  and  whether  however 
reasonable  the  rules  may  be,  and  however  wrongful  may 
have  been  the  action  of  the  defendants  in  resisting  them, 
the  carriers  could  lawfully  refuse  to  deliver  the  freight 
consigned  to  the  owners,  are  questions  to  be  considered 
further  along,  as  is  the  question  whether  conceding  the  re- 
fusal of  the  carriers  to  deliver  the  freight  to  have  been 
wrongful,  the  plaintiff  is  in  an  attitude  to  ask  the  Chancellor 
to  right  the  wrong  by  compelling  an  unconditional  delivery 
of  the  cars  to  it. 

The  rules  of  the  Association  are  of  great  length,  and 
need  not  be  recited  in  detail.  A  discussion  of  the  grounds 
upon  which  the  appellant  seeks  to  impeach  them  will  suf- 


26 

ficiently  indicate  their  nature  and  purpose.  Those  grounds, 
as  carefully  grouped  by  the  learned  Chancellor,  are  as  fol- 
lows: 

1st.  That  the  period  of  48  hours,  which  computed 
under  the  car  service  rules  extends  to  near  60  hours,  within 
which  it  is  required  to  unload  said  cars  after  delivery,  is  too 
short. 

2d.  That  the  demurrage  charge  of  a  dollar  per  day  per 
car  for  the  detention  of  cars  after  the  expiration  of  said  48 
hours  is  exorbitant  and  excessive. 

3d.  That  neither  the  plaintiff  nor  any  other  shipper 
or  consignee  was  consulted  by  the  defendants  in  the  framing 
of  said  rules,  and  that  neither  it  nor  any  other  shipper  or 
consignee  has  any  voice  in  the  selection  and  appointment 
of  the  manager  or  committee  of  the  Car  Service  Association. 

4th.  That  there  is  no  reciprocity  of  indemnity  and 
counter-penalty  in  said  rules  in  favor  of  plaintiff  and  other 
shippers  and.  consignees  against  the  defendants  for  not 
promptly  performing  their  duties  as  common  carriers. 

5th.  That  the  defendants  by  entering  into  the  Car  Ser- 
vice Association  have  surrendered  their  corporate  auton- 
omy and  functions,  and  relegated  the  control  and  manage- 
ment of  their  business  as  common  carriers  to  the  arbitrary 
control  of  the  manager  and  committee  of  the  Car  Service 
Association,  and  have  thereby  agreed  to  abolish  competi- 
tion, and  that  for  this  reason  the  said  rules  are  illegal. 

6th.  That  under  the  Car  Service  rules  a  delivering 
railroad  company  is  authorized  to  demand  demurrage 
charges  on  cars  that  do  not  belong  to  it  but  to  other  com- 
panies. 

That  there  may  be  a  reasonable  charge  for  the  deten- 
tion of  the  carrier's  cars  by  the  consignee  or  consignor  be- 
yond a  reasonable  time  within  which  to  load  and  unload 
them  cannot  now  be  doubted,  and  that  such  charges  may 
be  imposed  and  enforced  through  what  are  known  over  the 
country  as  Car  Service  Associations,  is  equally  well  settled. 

A  few  cases  only  had  arisen  in  the  courts  prior  to  the 
institution  of  this  action,  but  several  have  since  been  con- 
sidered, and  we  know  of  no  exception  to  the  general  doc- 


27 

trine  that  reasonable  rules  involving  charges  for  such  de- 
tention may  be  promulgated  by  such  associations,  and  that 
such  organizations  have  universally  been  held  to  effect  bene- 
ficial results  in  car  service,  alike  to  the  shipper  and  to  the 
carrier. 

Whether  a  charge  of  one  dollar  per  day,  or  fraction 
thereof,  made  for  detention  of  cars  and  use  of  track,  on  cars 
not  unloaded  within  48  hours  after  arrival,  not  including 
Sundays  and  legal  holidays,  and  on  empty  cars  not  loaded 
within  48  hours  after  being  placed,  is  a  reasonable  charge, 
and  the  time  fixed  for  the  loading  and  unloading  as  required 
in  the  rule,  is  a  reasonable  time,  are  questions  of  fact,  and 
on  these  issues  the  preponderance  of  the  proof  is  clearly 
with  the  carriers.  Such  was  the  finding  of  the  Chancellor 
at  the  hearing  of  the  motion  for  a  modification  of  the  injunc- 
tion and  his  conclusion  at  the  final  hearing ;  and  such  was 
the  opinion  of  the  Judge  of  this  Court  as  to  the  reasonable- 
ness of  the  time  for  re-delivery  when  the  case  was*  heard  on 
a  motion  to  reinstate  the  injunction  after  its  modification. 
Such  indeed  has  been  the  determination  of  every  tribunal 
where  a  similar  provision  has  been  adopted  by  the  various 
car  service  associations  of  the  country,  nor  has  it  been 
found  objectionable  to  the  courts  because  no  exception  is 
made  in  behalf  of  the  shippers  by  reason  of  an  unfavorable 
condition  of  the  weather. 

The  rule  to  be  beneficial  to  all  alike  must  be  of  uni- 
versal application  and  a  rare  or  exceptional  circumstance 
incident  to  a  particular  shipper  at  some  particular  time  can- 
not be  allowed  to  annul  the  rule.  The  rule  must  allow 
time  enough  to  meet  all  cases  likely  to  arise  and  that  such 
is  the  case  here  is  abundantly  shown  by  the  testimony. 

That  the  rate  of  one  dollar  per  day  is  also  reasonable 
is  conclusively  shown.  It  may  be  somewhat  more  than  the 
usual  per  cent,  on  the  first  cost  of  the  car,  but  this  is  not  the 
proper  criterion. 

A  railroad  company  does  not  construct  cars  for  the 
purpose  of  storing  property  in  them,  and  their  use  for 
transportation  involves  the  use  of  costly  railway  tracks  and 
other  expenditures.  It  may  be  true  as  contended  that  the 
shipper  was  not  consulted  in  framing  these  rules.  We  think, 
however,  if  the  rules  are  reasonable,  this  fact  does  not  viti- 
ate them.  No  complaint  is  made  that  there  was  an  attempt 


28 

to  enforce  them  before  ample  notice  had  been  given  of  their 
adoption.  So,  too,  if  the  rules  are  reasonable,  the  fact  there 
is  no  reciprocity  of  indemnity  or  counter  penalties  provided, 
cannot  avail  the  appellant. 

If  there  is  any  principle  of  law  well  understood  by  ship- 
pers, it  is  that  for  any  dereliction  of  duty  the  common  carrier 
may  be  held  accountable.  Nor  do  we  think  the  roads  sur- 
rendered their  corporate  autonomy  and  functions  by  rele- 
gating the  control  and  management  of  their  affairs  to  the 
control  of  the  Association.  If  the  rules  may  be  enforced 
by  the  respective  carriers  in  their  separate  capacities,  they 
may  be  enforced  by  them  jointly.  In  the  executive  com- 
mittee of  this  voluntary  association,  each  road  has  its  repre- 
sentative, and  the  rules  adopted  by  the  association  are  ac- 
cepted by  the  carriers  and  become  their  own  rules.  What 
the  carriers  may  each  do  for  themselves,  they  do  by  a  com- 
mon agent. 

This  practice  is  common  when  Union  Depots  are  under 
.the  control  of  a  common  agent  of  all  the  roads  using  the 
Depot.  It  is  true  that  the  rule  involves  the  agreement  of 
the  roads  to  make  their  charges  uniform,  and  this  is  sup- 
posed by  counsel  to  be  in  violation  of  the  law  preventing 
agreements  among  rival  carriers  not  to  compete  with  each 
other. 

We  do  not  regard  the  principle  contended  for  as  applic- 
able to  this  case.  Manifestly  the  object  of  the  rule  fixing 
a  uniform  charge  for  the  detention  of  cars,  is  not  for  the 
purpose  of  raising1  revenue  at  all.  That  feature  is  insignifi- 
cant, the  purpose  being  to  facilitate  transportation,  and 
the  less  revenue  there  is  derived  from  the  enforcement  of 
the  charge,  the  greater  the  carriers  are  benefitted  and  their 
facilities  increased  for  serving  the  public.  The  agreement 
in  this  case  to  fix  a  uniform  rate  is  an  advantage  and  not  an 
injury  to  the  appellant  and  its  associates. 

It  is  said,  further,  that  under  the  car  service  rules  the 
delivering  road  is  authorized  to  collect  storage  charges 
on  cars  that  do  not  belong  to  it  but  to  other  companies. 
This  if  true  would  seem  to  be  material  to  the  appellant,  but 
it  is  only  true  in  a  qualified  sense.  The  universal  practice 
among  carriers  is,  that  instead  of  the  railroad  company 
which  first  handles  the  shipment  unloading  it  at  its  terminal 
point,  thus  necessitating  a  transfer  to  a  connecting  line  to 


29 

be  forwarded  to  its  destination,  the  cars  containing  the 
freight  are  delivered  to  the  connecting  line,  and  this  line 
takes  charge  of,  and  uses  and  controls  the  car  so  received 
as  its  own  property.  It  keeps  it  in  repair  while  so  using 
it  as  it  does  its  own  cars  and  under  a  mutual  and  universal 
custom,  is  entitled  to  all  its  earnings.  Certainly  no  custom 
or  regulation  is  more  beneficial  to  shippers  than  this,  for 
otherwise  a  transfer  must  be  made  at  each  terminal  point 
of  the  carrier. 

The  assumption  is  that  this  interchange  of  cars  will 
work  out  equal  advantages  to  all,  but  to  still  further  equal- 
ize the  earnings,  an  account  of  the  mileage  is  taken  and 
the  road  using  the  car  renders  an  account  to  the  road  in 
fact  owning  it,  on  the  basis  of  three-quarters  of  a  cent  a  mile 
so  run. 

We  are  convinced  therefore  that  no  valid  objection  can 
be  urged  against  the  enforcement  of  these  rules  of  the 
appellees  as  announced  through  this  Association.  They 
not  only  commend  themselves  to  the  reason  and  common 
experience  of  those  observant  of  such  matters  but  as  we 
have  indicated  they  have  found  approval  at  the  hands  of  a 
number  of  the  courts  of  the  country,  and  we  may  add  of 
a  number  of  State  Boards  of  Railroad  Commissioners  whose 
business  has  been  to  carefully  investigate  such  questions  in 
behalf  of  the  general  business  public.  (See  Miller  &  Co. 
vs.  The  Georgia  R.  R.  Co.,  88  Ga.  563,  18  L.  R.  A.  323. 
Miller  vs.  Mansfield,  112  Mass.  260.  Chicago,  Milwaukee 
&  St.  Paul  Ry.  Co.  vs.  Pioneer  Land  Co.,  1892  Iowa.  Beach 
Ry.  Law  Sec.  924.  Union  Pacific  &c.  R.  R.  vs.  Cooke, 
Colo.  1892,  50  Am.  &  Eng.  R.  R.  Cases  89.) 

Admitting  all  this,  the  question  remains:  "Is  the  re- 
fusal of  the  appellant  and  its  associates,  even  acting  as  they 
did  under  a  combination  to  resist  the  enforcement  of  these 
reasonable  rules,  a  legal  excuse  for  the  carrier's  refusal  to 
deliver  freight  cars  on  the  appellant's  side-tracks  and 
switches? 

If  upon  any  particular  shipment  storage  charges  ac- 
cumulated before  it  was  unloaded  by  the  consignee  and 
it  was  still  in  the  car  of  the  carrier,  we  see  no  reason  why 
it  might  not  be  retained  until  the  regulation  be  complied 
with  and  the  charges  paid.  The  carrier  undoubtedly  has 
a  lien  on  the  freight  while  in  his  control  and  cannot  be 


30 

compelled  to  surrender  his  security.  But  if  he  delivers 
the  freight  without  collecting  the  car  service  fee,  can  it  be 
said  that  he  may  refuse  to  do  his  duty  as  a  common!  carrier 
and  decline  to  deliver  freight  subsequently  consigned? 

If  a  passenger  owe  a  former  bill  to  the  railway,  can  he 
be  turned  away  when  he  tenders  his  ticket  for  the  trip  he 
is  then  about  to  take  ?  The  car  service  fees  in  this  case  were 
due  only  to  two  of  the  carriers  and  if  the  excuse  offered 
were  valid,  the  other  appellees  were  without  even  that. 
The  appellant  owed  them  nothing. 

But  the  plea  is  wholly  insufficient  as  an  excuse  for  any 
of  the  carriers.  They  occupy  the  same  attitude  and  it  is 
wholly  immaterial  whether  they  had  or  had  not  demands 
arising  out  of  the  failure  of  the  appellant  to  pay  the  arrear- 
ages for  car  service.  It  was  the  duty  of  the  roads  not. in 
connection  with  the  appellant's  yards  to  deliver  the  freight 
consigned  to  it  to  the  roads  which  were  in  such  connection, 
and  the  duty  of  these  roads  to  receive  it  and  deliver  it  to 
the  appellant. 

The  right  of  the  carriers  to  thus  decline  to  switch  cars 
for  those  who  refuse  to  pay  the  bills  for  car  service  as  de- 
fined in  the  rules  of  the  association  is  made  the  basis  of 
earnest  argument  by  counsel  for  appellant,  that  such  an 
unreasonable  regulation  itself  affords  ample  excuse  for  the 
appellant's  combination  to  resist  the  enforcement  of  the 
rules.  But  it  is  observable  that  the  enforcement  of  this  rule 
is  made  to  depend  on  the  refusal  of  the  consignee  to  com- 
ply with  the  regulations. 

The  conditions  upon  which  it  may  be  put  in  force 
cannot  exist  except  at  the  will  of  the  shipper.  He  must 
first  wrongfully*  refuse  to  comply  with  the  rules,  before  any 
excuse  is  given  the  carrier  to  do  the  second  wrong.  And 
we  think  the  appellant  cannot  complain  of  the  wrong  doing 
of  the  carrier  made  possible  by  his  own  wrongful  refusal  to 
comply  with  other  reasonable  regulations  of  the  carriers. 

And  this  brings  us  to  a  consideration  of  the  question : 
Is  the  appellant  in  an  attitude  to  ask  the  aid  of  a  Chan- 
cellor to  compel  the  carrier  to  do  that  which  it  admits 
is  its  duty  to  do,  and  which  it  is  willing  to  do,  upon  a  com- 
pliance on  appellant's  part  with  the  reasonable  rules  of  the 
Association? 


Of  the  two  wrong  doers,  we  have  seen  that  the  appel- 
lant was  the  first.  Arid  upon  ample  authority,  the  Chan- 
cellor may  refuse  to  hear  him.  Especially  so,  when  the 
delivery  of  the  specific  cars  withheld  by  the  carriers  was 
accomplished  upon  the  issual  of  the  mandatory  injunction 
wljen  the  petition  was  filed.  The  carriers  obeyed  the  order 
to  deliver,  so  that  no  injury  in  that  particular  can  accrue 
to  the  appellant  by  withholding  the  relief  sought. 

In  Nash,  &c.,  vs.  Page,  &c.,  80  Ky.,  539,  the  com- 
plainants who  were  tobacco  buyers  withdrew  from  the 
Board  of  Trade  because  the  warehousemen,  also  members 
of  the  Board,  were  charging  them  too  much.  They  re- 
solved in  a  body  not  to  buy  from  the  warehousemen  until 
the  latter  should  accede  to  their  demands.  In  doing  this 
they  acted  in  violation  of  the  rules  of  the  Board.  The  ware- 
housemen, subsequently  and  illegally,  refused  them  admit- 
tance to  itheir  rooms  and  the  Chancellor  was  asked  to  com- 
pel such  admission. 

This  Court  said:  ''We  have  already  adjudged  that 
all  have  the  right,  upon  payment  of  reasonable  fees  and 
charges,  to  ente;-  these  public  warehouses,  nor  do  we  de- 
termine that  such  a  right  does  not  belong  to  the  appel- 
lants; but  while  this  right  exists,  it  does  not  follow  that 
the  Chancellor  will  undertake  to  grant  relief  by  injunction 
when  the  one  party  is  as  much  in  fault  as  the  other."  And 
the  judgment  below  dismissing  the  petition  was  affirmed. 

This  cannot  result  as  feared  by  counsel  in  putting  the 
proper  control  and  regulation  of  the  business  relations  of 
these  carriers  with  their  patrons  beyond  the  power  of  the 
courts  or  relegate  the  grievances  of  shippers  to  the  mercy 
of  the  carrier.  Doubtless  the  appellant  has  paid  to  these 
carriers  bills  of  freight  to  the  extent  of  thousands  of  dol- 
lars, and  not  a  few  of  them  inaccurate.  If  these  inac- 
curacies and  errors  were  not  corrected  and  the  carrier  made 
to  adjust  them,  it  was  certainly  not  because  the  courts 
were  not  open  to  its  complaints.  If  the  rules  of  the  Asso- 
ciation provide  as  they  seem  to  do,  an  easy  remedy  for 
the  settlement  of  conflicting  claims  among  the  parties  in- 
terested, it  is  to  be  regarded  only  as  an  additional  mode 
of  adjusting  these  inevitable  differences  to  the  slower  pro- 
cesses of  the  law.  As  suggested  in  the  Nash-Page  case, 
it  may  be  expected  that  the  personal  and  mutual  interests 
'  of  the  parties  in  securing  a  prompt  and  satisfactory  car 


32 

service  so  important  to  all  will  certainly  lead  them  to  a 
fair  adjustment  of  their  differences  without  the  aid  of  the 
.Chancellor.  Judgment  affirmed. 

W.  O.  Harris,  Humphrey  &  Davie,  for  Appellant. 

Edmund  F.  Trabue,  Pirtle  &  Trabue,  Lyttleton  Cooke, 
for  Appellee. 


DISTRICT    COURT    OF    WOODBURY    COUNTY, 
IOWA,  AT  SIOUX  CITY,  JANUARY,  1892: 


BEACH  RY.  LAW.,  SEC.  924. 


CHICAGO,  MILWAUKEE  &  ST.  PAUL  RY.  CO. 

VS. 
PIONEER  FUEL  CO. 

OPINION  OF  HON.  JUDGE  VAN  WAGENEN. 


The  defendants,  the  Pioneer  Fuel  Co.,  denied  the  right 
of  plaintiff  to  recover  for  the  detention  of  cars.  That  no 
contract,  expressed  or  implied,  was  ever  made  or  existed 
between  plaintiff  and  defendant  in  which  defendant  recog 
nized  the  right  of  plaintiff  to  charge  and  collect  for  deten- 
tion of  cars. 

OPINION  OF  THE  COURT. 

We  are  not  compelled  to  resort  to  the  maritime  law 
for  well-established  principles  decisive  of  this  case. 

If  the  railroad's  vehicles  can  thus  be  indefinitely  tied 
up  and  converted  into  warehouses,  it  will  take  twice  or  three 
times  the  number  of  cars  to  accomplish  the  work  of  trans- 


33 

portation  and  increased  trackage  and  terminal  facilities  in 
proportion.  This  would  necessitate  a  large  and  unneces- 
sary increase  of  the  capital  invested,  and  a  corresponding 
increase  of  freight  charges,  and  thus  the  rights  of  the  public 
to  an  economical  service  would  be  violated.  If  the  rule 
contended  for  by  the  defendants  shall  obtain,  no  reasonable 
man  will  expect  the  railroad  company  to  provide  the  ad- 
ditional rolling  stock  and  terminal  facilities  for  nothing, 
and  if  the  parties  who  render  the  same  necessary,  and  who 
get  the  use  of  the  cars  and  trackage,  cannot  be  made  to 
pay  for  the  same,  the  general  public  will  have  to  do  so  in 
increased  freight  rates.  Such,  however,  is  not  the  law. 

We  have  been  cited  no  case  which  clearly  so  decides, 
and  it  is  so  manifestly  unjust  and  inequitable  that  we  cannot 
believe  it  will  obtain  where  the  question  is  fairly  presented. 

When  one  person  uses  the  property  of  another  after 
being  notified  that  a  charge  will  be  made  for  the  same,  the 
law  implies  a  contract  to  pay  a  reasonable  sum  for  such 
use.  This  is  an  elementary  principle  and  one  of  every  day 
application  in  the  courts.  Any  other  rule  would  be  alike 
contrary  to  the  fundamental  principles  of  law  and  equity 
and  repulsive  to  the  commonest  sense  of  right  and  justice. 
It  is  not  the  policy  of  the  law  to  give  something  for  noth- 
ing. It  is  the  policy  of  the  law  to  require  a  reasonable 
compensation  for  every  valuable  thing1  obtained  or  of  whidh 
the  complaining  party  has  been  deprived.  Cases  in  which 
it  has  been  held  that  the  common  carrier  can  make  all 
necessary  and  reasonable  rules  for  the  speedy,  safe  and 
economical  discharge  of  its  important  duties  to  the  ship- 
ping public  are  too  numerous  to  require  citation.  We 
can  conceive  of  no  more  reasonable  and  necessary  regula- 
tion than  the  one  we  are  asked  to  enforce  in  this  action. 
The  need  of  such  a  regulation  is  apparent  from  the  facts 
of  this  case. 

The  judgment  will  therefore  be  for  the  plaintiff  in  the 
sum  of  $90.00,  the  stipulated  amount  due. 


34 


DISTRICT     COURT     OF    ARAPAHOE     COUNTY, 
COL.,  MARCH,  1892. 

50  A.  &  E.  R.  R.  CASES,  89. 

THE  UNION  PACIFIC,  DENVER  &  GULF  RY.  CO. 

VS. 
JOHN  COOKE. 


This  suit  was  for  $347.50  demurrage  charges  which 
had  accrued  on  car  loaded  with  brick  consigned  and  de- 
livered to  the  defendant  at  Denver. 

Every  possible  question  that  could  be  raised  was  raised 
in  this  suit. 

BY  THE  COURT. 

1.  That   the    railroad   companies   have   the    right   to 
adopt  and  enforce  any  reasonable  rule. 

2.  That  the  rule  allowing  48  hours  in  which  to  un- 
load is  not  unreasonable. 

3.  That  $2.00  per  car  per  day  is  a  reasonable  charge. 

4.  It  is  not  perceived  upon  what  principle  the  rea- 
sonableness of  the  rule  can  be  affected  from  the  fact  that 
the  defendant  was  not  consulted  in  framing  these  rules. 

5.  The    evidence    shows   that    the    regulation    com- 
plained of  was  well  known  to  the  defendant  before  hand, 
and  that   it  was  immaterial  whether   the   consignee   had 
notice  or  not. 

6.  That  the  regulation  is  operative  whether  indicated 
upon  bills  of  lading  or  not. 

7.  That  it  is  not  the  duty  of  the  railroad  company 
to  unload  freight  shipped  in  carload  lots. 

8.  Whether  or  not  this  shipment  was  made  by  the 
consignor  against  the  will  and  wish  of  the  defendant  is  a 


35 


question  that  would  be  very  material  between  the  defend- 
ant and  consignor,  but  does  not  affect  this  case. 

The  Court  thereon  ordered  the  jury  to  bring  in  a 
verdict  for  the  plaintiff  for  the  amount  sued  for,  $347.50. 

Hon.  Amos  J.  Rising,  Judge. 


LAW  AND   EQUITY   COURT,    LOUISVILLE,    KY. 
JUNE,  1892. 


UNREPORTED. 


NEWPORT  NEWS  &  MISS.  VALLEY  CO. 

VS. 
J.  SCHWARTZWALDER  &  SON. 

This  was  an  ordinary  action  to  recover  car  service 
charges  for  detention  to  cars  beyond  the  time  allowed  for 
unloading. 

It  was  tried  before  Judge  Toney  and  a  jury. 
The  jury  returned  a  verdict  for  the  plaintiff  and  the 
Court  gave  judgment  for  the  full  amount  claimed,  $128.00. 


COMMON  PLEAS  COURT,  LOUISVILLE,  KY. 
OPINION  RENDERED  JUNE  20, 1892. 

UNREPORTED. 
OHIO  &  MISSISSIPPI  RY.  CO. 

VS. 
PATRICK  BANNON. 


OPINION  OF  HON.  EMMET  FIELD,  JUDGE. 

In  this  case  Mr.  Bannon,  the  consignee,  failed  to  un- 
load the  car  within  forty-eight  hours  allowed  free,  and 


36 

after  demurrage  had  accrued  the  railway  company  had  the 
shipment  stored.  Mr.  Bannon  soon  afterwards  repievined 
the  consignment  and  the  O.  &  M.  Ry.  Co.  made  answer 
claiming  the  demurrage  charges,  switching  charges  to  the 
warehouse  and  storage  charges,  making  a  total  of  $27.00, 
for  which  the  Court  gave  judgment. 

In  deciding  this  case  the  Court  said  that  it  seemed  to 
him  not  only  that  the  rules  promulgated  by  the  Louisville 
Demurrage  Association  were  reasonable,  but  that  he  did 
not  see  how  common  carriers  by  railroad  would  ever  have 
cars  to  furnish  shippers  without  some  such  regulation  to 
compel  the  unloading  of  them  by  consignees. 


COURT  OF  COMMON  PLEAS  OF  BUTLER  COUN- 
TY, PA.,  NO.  68,  SEPT.,  1892. 

UNREPORTED. 

PITTSBURG    AND    WESTERN    RAILWAY    COM- 
PANY 

VS. 
W.  J.   GILLILAND. 

Appeal  by  defendant  from  judgment  of  R.  C.  Mc- 
Aboy,  Justice  of  the  Peace. 

This  suit  was  brought  to  enforce  the  payment  of 
$25.00  demurrage  due  the  plaintiff  company  from  the  de- 
fendant for  the  detention  to  a  car  loaded  with  fertilizer, 
shipped  to  the  defendant  at  Mars  Station,  on  the  railway 
of  the  plaintiff,  in  said  county  of  Butler,  Pennsylvania, 
from  Carteret,  New  Jersey,  which  said  car  so  loaded  was 
under  the  rules  and  regulations  of  the  Pittsburg  Car  Ser- 
vice Association,  adopted  by  the  plaintiff  company,  and  of 
which  the  defendant  had  notice,  to  be  by  him  unloaded 
within  forty-eight  hours  next  ensuing  the  delivery  of  said 
car  on  the  side  track  of  plaintiff's  railway  at  said  station, 


37 

for  said  purpose,  or  in  default  thereof  to  pay  a  charge  of 
one  dollar  per  day  for  the  detention  and  use  of  said  car 
for  each  and  every  day  it  should  be  permitted  by  the  de- 
fendant to  remain  on  said  siding  unloaded  after  the  ex- 
piration of  forty-eight  hours,  as  aforesaid. 

Which  said  car  the  said  defendant  would  not  and  did 
not  unload  within  said  period  of  forty-eight  hours  next 
ensuing  the  delivery  thereof  on  said  siding,  and  notice  to 
him  to  unload  the  same,  but  on  the  contrary  unreasonably 
refused  and  neglected  to  unload  said  car  for  the  period  of 
twenty-seven  days  after  the  same  was  placed  for  unloading 
as  aforesaid. 

The  defendant  denied  the  right  of  the  plaintiff  com- 
pany to  charge  and  collect  demurrage  for  the  detention  of 
said  car  because  of  his  neglect  and  refusal  to  unload  the 
same  for  the  period  of  time  charged  in  plaintiff's  state- 
ment of  claim.  Alleged  that  the  fertilizer  company  from 
whom  he  ordered  said  fertilizer  shipped  it  one  month  too 
soon,  that  he  did  not  have  a  place  to  store  it  conveniently, 
that  it  was  not  convenient  for  him  to  have  it  delivered 
before  April  1st,  1892,  and  claimed  that  if  the  plaintiff 
company  had  any  right  to  charge  and  collect  demurrage 
for  the  detention  of  said  car,  it  must  look  to  the  consignor 
therefor,  as  under  his  contract  with  the  consignor  he  was 
not  obliged  to  accept  said  fertilizer  before  April  1st,  1892. 

January  9th,  1893,  jury  sworn. 
Plaintiff's  Counsel  admits : 

That  the  defendant  will  testify  that  the  fertilizer  com- 
pany from  whom  he  ordered  the  same,  by  mistake  shipped 
said"  fertilizer  one  month  too  soon,  that  the  defendant  did 
not  have  a  place  to  store  it  conveniently,  that  it  was  not 
convenient  for  him  to  have  it  delivered  before  the  first 
day  of  April,  1892,  and  that  defendant  gave  plaintiff's 
agent  the  above  reasons  for  not  unloading  said  car  sooner 
than  it  was  unloaded. 

Defendant's  Counsel  admits : 

That  the  plaintiff  company  is  a  common  carrier  for 
hire  and  in  its  capacity  as  such  carrier  transported  said 
car  upon  and  over  its  railway  to  Mars  Station,  as  charged 
in  the  narr  filed. 


38 

That  said  plaintiff  company  had  adopted  the  rules  and 
regulations  of  the  Pittsburg  Car  Service  Association  with 
reference  to  the  time  in  which  cars  should  be  unloaded  by 
consignees  or  in  default  thereof,  that  a  charge  should  be 
made  of  one  dollar  per  day  for  each  and  every  day  any 
car  shall  be  detained  by  reason  of  the  neglect  or  failure 
of  the  consignee  to  unload  the  same.  That  said  rule  and 
regulation  is  reasonable  and  that  the  defendant  had  notice 
thereof  as  charged  in  the  narr. 

That  he  had  notice  of  the  arrival  of  said  car  at  Mars 
Station  and  refused  for  the  reasons  aforesaid  to  unload 
the  same  for  the  period  and  time  charged  in  the  plaintiff's 
affidavit,  and  claim  and  narr,  and  that  he  has  not  paid 
the  plaintiff  said  demurrage  charge  of  $25.00  or  any  part 
thereof,  and  claims  as  a  matter  of  law  that  said  plaintiff 
is  not  entitled  to  charge  or  collect  demurrage  on  cars  thus 
detained. 

Eo  die  under  the  facts  agreed  upon,  the  court  directed 
a  verdict  in  favor  of  the  plaintiff  for  the  sum  of  $20.12, 
being  the  amount  which  the  defendant  admits  plaintiff  is 
entitled  to  recover  if  under  the  law  applicable  to  such  cases 
the  plaintiff  is  entitled  to  recover  at  all,  with  the  right  in 
the  court  to  enter  judgment  for  the  defendant  non  ob- 
stante  veredicto. 

May  5,  1893,  reserved  question  of  law  and  rule  for 
judgment  on  the  verdict  of  the  jury,  argued. 

R.  P.  SCOTT,  Counsel  for  Plaintiff. 

A  charge  reasonable  in  amount  made  by  a  railroad 
company  for  the  detention  of  cars  beyond  a  reasonable 
time  after  arrival  and  notice  given  to  consignees,  such 
detention  being  by  the  negligence  or  delay  of  the  con- 
signee is  lawful  and  may  be  collected  by  the  carrying  com- 
pany. 

Alabama    Railroad    Commission    in    re    petition    of 
Youngblood  &  Ehrman. 

No  reason  is  perceived  in  law  or  justice  why  any  un- 
reasonable and  unnecessary  detention  of  cars  by  con- 
signees should  not  be  paid  for.  It  does  not  follow  that  be- 
cause there  is  no  statutory  regulation  of  the  question, 
there  is  no  law. 


• 

Union  Brewing  Co.,  Peoria,  vs.  the  C.  B.  &  Q.  R.  R. 
Co.  (Phillips  Commissioner,  etc.) 

Railroad  companies  have  the  implied  authority  as  in- 
cident to  their  corporate  character  and  purpose,  to  make 
and  enforce  all  reasonable  rules  and  regulations  for  the 
transacting  and  conducting  of  their  business  which  in  their 
judgment  may  be  necessary  for  the  successful,  convenient 
and  safe  conduct  thereof. 

Their  business  implies  a  degree  of  authority  almost 
absolute  in  the  management,  conducting  and  controlling 
of  their  trains  and  the  persons  thereon,  as  necessary  for 
the  common  safety,  and  to  protect  themselves  from  im- 
position and  wrong.  Rohrer  on  Railroads,  Vol.  1,  page 
227. 

And  this  extends  not  only  to  passengers,  but  also  to 
the  making  of  like  reasonable  rules  as  to  the  reception  and 
delivery  of  freight,  such  rules  and  regulations,  passengers, 
shippers  and  consignees  are  to  conform  to. 

Illinois  Central  R.  R.  Co.  vs.  Whitmore,  43  111.,  420. 
Tracy  vs.  N.  Y.  &  H.  R.  R.  Co.,  9  Bosw.,  396. 

It  is  the  duty  of  the  consignee  to  be  in  readiness  to 
receive  his  goods  after  proper  notice  and  he  will  be  liable 
to  the  carrier  for  compensation  for  any  detention  which 
may  be  caused  by  his  fault  in  not  promptly  accepting  them 
after  he  gets  notice  that  the  carrier  is  prepared  to  deliver 
them ;  and  this  not  upon  the  ground  that  there  is  any  con- 
tract or  stipulation  beween  the  parties  as  to  the  charge, 
but  the  principle  is  general  that  the  carrier  who  has  been 
improperly  detained  by  the  freighter  or  consignee  of  the 
cargo,  can  receive  from  him  such  damages  in  the  nature 
of  demurrage  as  will  afford  him  a  fair  compensation  for 
the  loss  sustained  by  the  delay;  as  where  the  consignee 
of  a  cargo  of  grain  instead  of  at  once  accepting  it  from  the 
vessel  which  was  ready  to  deliver  it  or  providing  a  place 
for  its  delivery  kept  the  vessel  waiting  for  several  days 
in  order  to  sell  it  before  delivery,  it  was  held  that  he  was 
liable  for  the  loss  occasioned  by  the  detention. 

Huntley  vs.  Dows,  55  Barb.  310. 
Hutchinson  on  Carriers,  page  383. 


. 

Railroad  Company  may  make  and  enforce  a  reason- 
able regulation  to  prevent  detention  of  cars.  It  is  a  rea- 
sonable regulation  to  charge  a  reasonable  rate  for  demur- 
rage and  storage,  and  the  payment  of  such  reasonable  rate 
or  charge  may  be  enforced. 

Miller  &  Co.  vs.  The  Georgia  Railroad  Co.,  Supreme 
Court  of  Georgia. 

Kentucky  Wagon  Co.  vs.  The  Louisville  &  Nashville 
R.  R.  Co.,  Louisville  (Ky.)  Law  and  Equity 
Court. 

The  Union  Pacific,  Denver  and  Gulf  Ry.  Co.  vs. 
Cooke,  District  Court,  Arapahoe  Co.,  Colorado. 

Ohio  &  Mississippi  Ry.  Co.  vs.  Bannon,  Common 
Pleas  Court,  Louisville,  Ky. 

Milwaukee,  Lake  Shore  &  Western  Ry.  Co.  vs.  Lynch, 
Circuit  Court,  Oneida  Co.,  Wisconsin. 

Chicago,  Milwaukee  &  St.  Paul  Ry.  Co.  vs.  Pioneer 
Fuel  Co.,  District  Court,  Woodbury  Co.,  Iowa. 

And  not  only  are  charges  of  this  character  collectible, 
but  the  Railroad  Company  has  a  lien  on  the  goods  for  the 
same. 

Miller  vs.  Mansfield,  112  Mass.,  260. 

George  Campbell  Co.  vs.  The  Baltimore  &  Ohio  R. 
R.  Co.,  Circuit  Coutrt,  Jefferson  Co.,  W.  Va. 

J.  D.  MARSHALL,  Attorney  for  Defendant. 

June  5th,  1893.  Opinion  of  the  Court  delivered  by 
Hazen,  President  Judge. 

OPINION. 

Question. — Under  the  facts  agreed  upon  the  Court 
directed  a  verdict  in  favor  of  the  plaintiff  for  the  sum  of 
$26.12,  being  the  amount  which  defendant  admits  plaintiff 
is  entitled  to  recover  if  under  the  law  applicable  to  such 
cases  the  plaintiff  is  entitled  to  recover,  with  the  right  in 
the  Court  to  enter  judgment  for  defendant  if  the  law  is 
with  him,  non  obstante  veredicto. 


Facts  admitted : 

Plaintiff  admits  inter  alia  that  defendant  will  testify 
that  the  Fertilizer  Company  from  whom  he  ordered  the 
fertilizer,  shipped  it  one  month  too  soon  and  that  he  did 
not  have  a  place  to  store  it  conveniently  and  that  it  was 
not  convenient  for  him  to  have  it  delivered  before  the  first 
day  of  April  following  its  arrival  at  the  station,  as  agreed 
upon  with  the  Fertilizer  Company,  and  that  he  gave  plain- 
tiff's agent  the  above  reason  for  not  unloading  the  car 
sooner  than  it  was  unloaded. 

Defendant  admits : 

That  the  plaintiff  company  is  a  common  carrier  for 
hire,  and  in  its  capacity  as  such  carrier,  transported  said 
car  ot  tertilizer  upon  and  over  its  railway  to  Mars  Station, 
as  charged  in  the  narr  filed.  That  plaintiff  has  adopted 
the  rules  and  regulations  of  the  Pittsburg  Car  Service  As- 
sociation, with  reference  to  the  time  in  which  cars  should 
be  unloaded  by  consignees,  or  in  default  thereof  that  a 
charge  should  be  made  of  one  dollar  for  each  and  every 
day,  per  car,  but  no  car  shall  be  detained  by  reason  of 
the  neglect  or  failure  of  the  consignee  to  unload  the  same 
for  a  longer  period  than  forty-eight  hours.  That  said  rule 
and  regulation  is  reasonable  and  that  defendant  had  notice 
thereof  as  charged  in  the  narr.  That  defendant  had  no- 
tice of  the  arrival  of  said  car  at  Mars  Station,  and  refused 
for  the  reason  above  (in  plaintiff's  admissions)  to  un- 
load the  same  for  the  period  and  time  charged  in  the  plain- 
tiff's affidavit  and  claim  and  narr.,  and  that  he  has  not  paid 
the  plaintiff  said  demurrage  charge  of  $25  or  any  part 
thereof,  and  claims  as  a  matter  of  law  that  plaintiff  is  not 
entitled  to  charge  or  collect  demurrage  on  cars  thus  de- 
tained. That  defendant  ordered  a  car  of  fertilizer  from 
Carteret,  N.  J.  That  this  suit  is  brought  to  enforce  the 
payment  of  $25  demurrage  charges  du'e  plaintiff  from  de- 
fendant for  the  detention  of  a  car  loaded  with  fertilizer, 
shipped  to  the  defendant  at  Mars  Station,  on  the  said 
railway  of  plaintiff  company,  in  said  county,  from  Carteret, 
N.  J.,  by  his  order,  which  said  car  the  defendant  admits  he 
had  notice,  under  the  rules  and  regulations  adopted  by 
plaintiff  company,  was  to  be  by  him  unloaded  within  forty- 
eight  hours  next  ensuing  the  delivery  of  said  car  on  the 
side  track  on  plaintiff's  railway  at  said  Mars  Station,  for 


42 

said  purpose,  or  in  default  thereof  to  pay  a  demurrage 
charge  of  one  dollar  per  day  per  car  for  the  detention  and 
use  of  said  car  and  siding  for  each  and  every  day  the  car 
shall  be  permitted  by  defendant,  the  consignee,  to  remain 
after  delivery  and  notice,  on  said  siding  unloaded,  after 
the  expiration  of  forty-eight  hours,  as  aforesaid. 

That  defendant  would  not  and  did  not  unload  the 
goods  from  said  car  within  a  period  of  forty-eight  hours 
next  ensuing  the  delivery  thereof  on  said  siding,  and  notice 
to  him  to  unload  the  same,  but  on  the  contrary  unreason- 
ably refused  and  neglected  to  unload  said  goods  from  said 
car  for  the  period  of  twenty-seven  days  then  next  ensuing 
after  the  same  was  properly  placed  for  unloading  on  the 
side  track  of  plaintiff's  railway  at  Mars  Station,  and  notice 
of  such  delivery  thereof.  That  said  car,  numbered  5,301, 
Pittsburg,  Fort  Wayne  &  Chicago,  arrived  and  was  prop- 
erly placed  upon  the  side  track  of  plaintiff's  railway,  at 
said  station,  with  notice  thereof  to  defendant  on  March 
9th,  1892,  and  was  not  unloaded  until  April  9th,  1892, 
being  twenty-five  days  exclusive  of  forty-eight  hours  and 
Sundays  (two  days,)  allowed  the  consignee  under  said 
car  service  rules,  as  applicable  to  this  case,  to  wit,  Article 
4,  Section  1:  "That  a  charge  of  one  dollar  per  car  per 
day  shall  be  made  for  detention  to  all  cars  and  use  of  tracks 
at  all  points  within  the  territory  governed  by  this  asso- 
ciation, as  hereinafter  defined,  after  forty-eight  hours  from 
the  time  of  delivery  of  cars  on  track  for  loading  or  unload- 
ing, not  including  Sundays  or  legal  holidays,  it  being  un- 
derstood that  collections  be  made  and  shall  belong  to  each 
company  for  detentions  on  all  side  tracks  directly  connect- 
ed with  its  line ;  a  fraction  of  a  day  after  forty-eight  hours 
shall  be  considered  a  day." 

Sec.  2.  Each  railroad  company  shall  place  upon  its 
delivery  tracks  all  cars  containing  freight  to  be  delivered 
in  that  manner  immediately  upon  arrival  or  as  soon  there- 
after as  ordinary  routine  of  yard  work  will  permit. 

Sec.  3.  Delivery  of  cars  shall  be  considered  to  have 
been  effected  when  such  cars  have  been  placed  on  recog- 
nized or  designated  delivery  tracks. 

Sec.  9.     The  territory  covered  by  this  association  is 


43 

hereby  defined  as  follows :     To  include  all  tracks  within 
the  distance  of  forty  miles  of  the  Pittsburg  Court  House/' 

That  said  Mars  Station  is  within  said  radius.  That 
plaintiff  company  having  formulated  its  said  rules  govern- 
ing its  car  service,  which  the  defendant  admits  he  had  no- 
tice of  and  understood,  and  that  the  said  rules  were  reason- 
able and  necessary,  he  ordered  the  car  of  goods  shipped 
over  plaintiff's  railway  to  Mars  Station,  within  said  dis- 
trict ;  that  the  car  so  loaded  with  his  goods  was  so  shipped 
by  his  consignor,  though  at  an  earlier  date  possibly  than 
he  desired,  and  when  it  arrived  was  properly  delivered  to 
him  upon  plaintiff's  side  track  for  unloading,  he  duly  no- 
tified thereof,  but  refused  to  unload,  save  for  the  spa'ce  of 
twenty-seven  days  and  upwards  thereafter.  He  assigned 
as  a  reason  for  his  delay,  that  his  consignor  shipped  his 
goods  one  month  too  soon,  and  that  it  was  not  convenient 
for  him  to  have  the  fertilizer  delivered  before  the  first  day 
of  April  next  after  its  arrival,  but  there  is  no  evidence  that 
plaintiff  company  knew  of  this  other  than  as  stated,  after 
the  arrival  of  the  loaded  car.  The  plaintiff  company,  a 
common  carrier  for  hire,  neither  knew  of  the  private  ar- 
rangement between  consignor  and  consignee,  nor  was  in 
any  way  a  party  to  or  interested  therein,  other  than  as  a 
carrier  for  hire  of  said  car  load  of  fertilizer.  The  con- 
signee, knowing  the  rules  of  the  car  service  in  this  district, 
and  admitting  that  they  are  reasonable  and  necessary  for 
the  accommodation  of  the  public  in  shipping  is  bound  by 
them  through  the  implied  contract  growing  out  of  this 
necessary  relation  in  such  cases. 

Law. — It  will  not  be  denied  that  plaintiff  company 
could  have  unloaded  defendant's  merchandise  into  its 
warehouse,  and  not  only  have  collected  storage  charges, 
but  have  acquired  a  lien  therefor  as  well  as  for  the  carriage 
of  same.  Then  upon  what  theory  can  we  distinguish  the 
claim  of  storing  in  warehouse  and  in  equally  well  con- 
structed buildings  on  wheels.  Upon  the  arrival  of  the 
fertilizer  at  its  destination  the  liability  of  the  plaintiff  com- 
pany as  a  common  carrier  ceased,  but  then  became  liable 
for  the  custody  of  the  fertilizer  as  warehousemen.  This 
claim  or  demand  is  in  its  essential  character  a  charge 
for  storage.  Clearly  the  common  carrier,  after  a  reason- 
able time  has  been  allowed  for  unloading,  is  as  much  en- 


44 

titled  to  charge  for  the  further  use  of  the  car,  and  the 
track  upon  which  it  stands,  as  it  would  be  for  the  use  of 
its  warehouse.  This  method  of  storage  may  in  many 
cases  be  as  effectual  as  any  other,  indeed  it  may  serve  the 
consignee's  interest  much  better  to  have  the  goods  remain 
in  the  car,  at  least  for  a  time,  than  for  him  to  unload  them, 
and  especially  so  where  the  goods  are  of  an  offensive  char- 
acter. Such  was  admittedly  the  fact  in  this  case.  Cases 
in  which  it  has  been  held  that  the  common  carrier  can 
make  all  necessary  and  reasonable  rules  for  the  secure, 
safe  and  economical  discharge  of  its  important  duties  to 
the  shipping  public,  are  too  numerous  to  require  citation. 

We  can  conceive  of  no  more  necessary  and  reasonable 
regulation  than  the  one  we  are  asked  to  enforce ;  the  need 
of  such  a  regulation  is  apparent  from  the  facts  in  this  case, 
The  rules  adopted  in  this  district  are  reasonable  and  clearly 
necessary,  and  in  no  way  detrimental  to  shippers,  but 
wholly  in  their  interest.  The  common  carrier  is  compelled 
to  accept  goods  for  transportation,  and  it  would  be  mani- 
festly unjust  to  not  enforce  a  corresponding  duty  on  the 
shipper,  to  not  negligently  and  unnecessarily  detain  or 
otherwise  deprive  the  common  carrier  of  the  use  of  the 
vehicles  which  the  law  thus  places  at  his  command. 

Having  reached  this  conclusion,  judgment  must  be 
entered  in  this  case  in  favor  of  plaintiff,  and  against  the 
defendant  upon  this  verdict,  upon  payment  of  the  jury  fee. 

And  now,  June  5th,  1893,  upon  due  consideration  the 
Court  being  of  opinion  that  the  law  is  with  the  plaintiff 
in  the  question  reserved  in  this  case,  and  that  judgment 
must  be  entered  upon  this  verdict  against  defendant  ana 
in  favor  of  plaintiff,  upon  payment  of  the  jury  fee.  Judg- 
ment. By  the  Court, 

AARON  L.  HAZEN, 

President  Judge. 


45 

CIRCUIT  COURT,  ONEIDA  COUNTY,  STATE  OF 
WISCONSIN. 

UNREPORTED. 

OPINION  RENDERED  OCTOBER  15,  1892. 
MILWAUKEE,  LAKE  SHORE  &  WESTERN  RY.  CO 

.  "vs. 

A.  F.  LYNCH. 


FOR  PLAINTIFF  BY  JURY. 


The  plaintiff  shipped  one  car  load  of  lumber  con- 
signed to  the  defendant  at  Tomahawk  Lake,  Wis.  The 
car  was  allowed  to  stand  on  the  side  track  loaded  until 
one  dollar  demurrage  had  accrued,  when  the  defendant 
offered  to  pay  the  freight  charges  thereon  and  unload  the 
car.  The  agent  of  the  railroad  company  refused  to  allow 
the  car  to  be  unloaded  until  the  demurrage  charges  were 
paid.  The  defendant  refused  to  pay  the  charges,  and  the 
car  remained  orf  track  nine  days  longer,  when  it  was  un- 
loaded by  the  railroad  company,  and  contents  were  taken 
by  the  defendant  against  the  protest  of  the  plaintiff. 

The  defendant  made  answer  that  the  car  was  not  prop- 
erly placed  for  unloading,  hence  no  demurrage  was  due, 
and  set  up  a  counter  claim  for  $500.00  damages. 

The  jury  decided  that  the  car  was  properly  placed  for 
unloading. 

The  Court  decided  that  the  rule  was  a  reasonable  one, 
both  as  to  the  time  allowed  free  to  unload  cars  and  as  to 
the  amount  of  the  charge,  and  ordered  judgment  against 
the  defandant  for  the  amount  sued  for,  twenty-two  dollars 
and  costs,  making  a  total  of  one  hundred  and  fifty-one 
($151.00)  dollars. 


46 


SIXTH  DISTRICT  COURT  OF   RHODE   ISLAND, 
AT  PROVIDENCE. 


(R.  I.)  22,  L.  R.  A.,  532. 


J.  C.  GOFF 

VS. 
OLD  COLONY  R.  R.  CO. 

OPINION  OF  HON.  JUDGE  COOKE. 
(Opinion  Rendered  January  19,  1893.) 


The  defendant  refused  to  deliver  to  the  plaintiff  a  car 
load  of  brick  on  which  demurrage  charges  had  accrued, 
until  the  said  charges  were  paid  or  guaranteed.  Suit  was 
brought  by  the  plaintiff  against  the  Old  Colony  Railroad 
for  damages  of  $100.00  for  illegally  (as  plaintiff  claimed) 
preventing  him  from  unloading  the  car. 

The  Court  affirmed  the  railroad  company's  right  to 
hold  freight  for  demurrage  charges  and  gave  judgment 
for  the  Old  Colony  Railroad  Company. 


CIRCUIT  COURT  OF  JEFFERSON  CO.,  W.  VA. 
MARCH,  1893. 


UNREPORTED. 

GEORGE  CAMPBELL  CO. 

VS. 
BALTIMORE  &  OHIO  RAILROAD  CO. 


Two  cars  of  bark  were  received  at  B.  &  O.  Station  in 
Charlestown,  W.  Va.,  in  the  month  of  August,  1891,  and 


47 

consignees  were  notified  on  arrival  in  the  usual  way.  They 
neglected  to  call  and  pay  freight  charges  and  remove  the 
lading  until  after  the  free  time  had  expired,  and  were  then 
told  by  the  agent  that  $1.00  car  service  charge  on  each  car 
had  already  accrued,  which  must  be  paid  before  delivery. 
This  they  refused  to  do,  and  in  accordance  with  car  service 
rules  delivery  was  withheld  for  payment  of  charge.  The 
cars  remained  on  track  until  $69.00  charge  had  accrued 
upon  each  car;  the  railroad  company  then  sold  the  bark 
for  freight  and  car  service  charges,  and  suit  was  brought 
by  plaintiff  for  damages  in  sum  of  $500.00.  By  agree- 
ment of  both  parties,  a  jury  having  been  waived,  the  case 
was  submitted  to  the  judgment  of  the  Court,  and  after 
hearing  the  evidence  and  argument  of  counsel,  judgment 
was  rendered  in  favor  of  the  defendant  for  the  sum  of 
$14.88,  being  the  difference  between  the  value  of  the  bark 
sold  and  the  amount  of  freight  and  demurrage  charges. 

The  Supreme   Court  affirmed  Judge   Faulkner's   de- 
cision, the  Court  unanimously  refusing  to  grant  an  appeal. 


CIRCUIT  COURT  OF  COOK  CO.,  ILLINOIS. 
NOVEMBER  10,  1893. 

UNREPORTED. 


THOMAS  PUR-CELL,  ET.  AL. 

VS. 

PITTSBURG,  CINCINNATI,  CHICAGO  &  ST.  LOUIS 
RAILWAY  COMPANY. 


Thomas  Purcell  &  Bro.  are  coal  dealers  in  the  city 
of  Chicago,  and  are  accustomed  to  receive  coal  in  car-load 
lots  over  the  P.,  C.  C.  &  St.  L.  Ry.  In  December,  1891, 
the  railroad  company  refused  to  deliver  certain  cars  of  coal 
which  were  then  in  its  possession  and  upon  which  car  ser- 
vice charges  had  accrued  owing  to  the  delay  on  the  part  of 


48 

Thomas  Purcell  &  Bro.  to  promptly  unload  same.  Purcell 
&  Bro.  filed  a  bill  in  the  Circuit  Court  asking  for  a  man- 
datory injunction  compelling  the  railroad  company  to  de- 
liver the  cars  of  coal  then  held  and  others  as  received,  and 
an  injunction  was  granted  upon  the  bill. 

Messrs.  Walker  &  Eddy,  counsel  for  the  railroad  com- 
pany, afterwards  appeared  in  the  case,  filed  answer  and 
cross-bill,  and  upon  reference  of  the  case  to  Master  in 
Chancery  I.  K.  Boyesen,  evidence  was  taken,  and  a  hear- 
ing had  upon  bill  and  answer,  cross-bill  and  answer,  and 
upon  the  evidence  taken. 

Both  in  the  pleadings  and  at  the  hearing  the  railroad 
company  made  no  attempt  to  claim  any  lien  on  the  freight 
for  charges  which  had  accrued  upon  prior  shipments  of 
freight,  or  for  any  sums  due  for  the  construction  of  a  side 
track.  The  only  claim  made  by  counsel  for  the  Car  Ser- 
vice Association,  was  that  the  specific  freight  in  the  pos- 
session of  the  railroad  company  at  the  time  of  the  filing 
of  the  bill  should  be  held  for  the  specific  charges  which 
had  accrued  upon  that  freight  by  reason  of  unreasonable 
delay  on  the  part  of  complainants  in  receiving  and  unload- 
ing the  cars,  so  that  on  the  hearing  before  Master  in  Chan- 
cery Boyesen,  and  afterwards  before  Judge  Horton,  the 
only  question  in  controversy  was  whether  or  not  the  rail- 
road company  had  a  lien  upon  freight  for  car  service 
charges  which  had  accrued  upon  that  particular  freight  on 
account  of  unreasonable  delay  in  receiving  and  unloading. 

Master  in  Chancery  Boyesen  held  that  the  railroad 
company  had  a  lien  upon  the  freight  in  question  under 
the  published  notices,  rules  and  regulations,  and  provis- 
ions in  the  bills  of  lading,  all  of  which  provided  that 
freight  shipped  should  be  subject  to  car  service  or  demur- 
rage charges  at  the  point  of  destination,  and,  after  a  care- 
ful and  equitable  computation,  he  found  that  the  sum  of 
$40.00  was  due  the  railroad  company  for  car  service 
charges. 

On  the  hearing  before  Judge  Horton,  on  exceptions 
to  the  Master's  report,  the  case  was  exhaustively  argued 
by  counsel  on  both  sides,  and  taken  under  advisement  by 
the  Court. 

November  10th  the  Court  rendered  its  decision,  which 
is  given  at  length.  It  holds  broadly  that  railroad  com- 


49 

panics  have  a  lien  upon  freight  for  reasonable  car  service 
charges  after  a  reasonable  time  has  elapsed  for  the  un- 
loading and  release  of  the  cars. 

Only  one  case  has  ever  been  passed  upon  by  a  court 
of  record  in  this  State  prior  to  this  decision  by  Judge  Hor- 
ton  and  that  was  the  case  of  Jenkins  vs.  The  Northwestern 
Railway  Company,  which  went  to  the  Supreme  Court  and 
was  decided  by  that  Court,  and  the  decision  reported  in 
103  111.,  page  588. 

In  that  case  the  freight  involved  was  paper,  part  of 
which  had  been  unloaded  before  the  railroad  company 
claimed  to  hold  the  balance.  The  Supreme  Court  used 
rather  sweeping  language  as  to  the  right  of  railroad  com- 
panies to  hold  freight  for  "demurrage." 

It  will  be  observed  from  Judge  Morton's  opinion  that 
he  does  not  question  in  any  way  the  language  or  the  decis- 
ion of  the  Supreme  Court  as  applied  to  the  facts  in  the 
Jenkins'  case,  but  he  clearly  distinguishes  the  Purcell  case 
from  the  Jenkins'  case,  and  clearly  points  out  that  the  very 
language  of  the  Supreme  Court  in  the  Jenkin's  case  im- 
pliedly  gives  railroad  companies  a  lien  upon  such  freight 
as  coal,  which  cannot  be  practicably  unloaded  and  stored, 
but  must  be  delivered  in  bulk  and  unloaded  by  the  con- 
signee. 

The  decision  is  as  follows : 

DECISION  BY  JUDGE  HORTON. 

I  have  not  prepared  a  written  opinion  in  this  case. 
While  I  have  examined  many  of  your  authorities,  I  have 
not  felt  it  necessary  to  review  all  these  authorities  in  a 
written  opinion.  What  I  have  to  say,  therefore,  is  more 
in  the  nature  of  my  conclusions  in  the  matter,  with  some 
references  to  the  facts  and  the  law. 

The  question  as  originally  presented  in  this  case  by 
the  bill  Thomas  Purcell  filed  originally  was  the  right  of 
the  railroad  company  to  hold  his  coal,  claiming  a  lien 
thereon  for  charges  on  former  shipments  and  for  a  claim 
of  a  balance  due  for  construction  of  side  track  into  his 
yard.  An  injunction  was  granted  upon  that  bill,  and  that 
position  -has  since  been  substantially  abandoned  by  the 
present  counsel  in  the  case,  and  I  think  wisely  abandoned, 


50 

for  no  court  could  sustain  such  a  position,  as  claimed  by 
the  freight  agent,  I  think  it  was,  of  the  railway  company 
— could  not  sustain  it  at  all.  The  question,  however,  that 
has  now  been  presented  to  the  Court  is  this:  The  com- 
plainant is  the  receiver  of  large  quantities  of  coal  shipped 
in  bulk,  from  Ohio,  I  believe  it  is — from  out  of  the  State. 
It  is  claimed  on  the  part  of  the  railway  company  that  the 
defendant  unnecessarily  delayed  the  unloading  of  the  cars, 
and  that  the  railway  company  had  a  right  to  a  car  service 
charge  or  demurrage,  or  whatever  you  please  to  name  it, 
for  the  use  of  these  cars  beyond  a  reasonable  time  for  un- 
loading, under  the  rules.  The  case  was  originally  wisely 
brought,  in  my  opinion,  and  would  have  been  sustained 
upon  the  issue  as  originally  presented. 

There  have  been  elaborate  oral  arguments  and  I  have 
been  furnished  with  very  elaborate  printed  briefs  in  the 
case.  The  freight  was  coal  in  bulk.  The  complainant  had 
a  yard  and  side  track  connected  by  switches  with  the  de- 
fendant railway  company's  tracks.  The  railway  company 
was  therefore  bound  by  law  in  this  State,  and  I  think  by 
a  fair  interpretation  of  the  Constitution,  by  the  Constitu- 
tion of  the  State,  not  only  to  allow  that  switch  connection 
to  be  made,  but  to  deliver  the  coal  in  the  yard  of  the  de- 
fendant on  the  track,  or,  rather,  deliver  the  cars  loaded  on 
the  track.  Were  it  not  for  the  case  of  the  Northwestern 
Railway  Co.  vs.  Jenkins,  103  111.,  588,  this  Court  would 
have  no  serious  trouble  in  this  case.  That  case  at  first 
seems  to  be  conclusive  of  the  question  now  before  the 
court.  That  case  was  decided  upon  an  agreed  statement 
of  facts,  and  at  my  request  I  have  been  furnished  with  and 
have  examined  a  copy  of  this  agreement  as  filed  in  the 
Supreme  Court  which  passed  upon  the  case.  When  the 
facts  in  that  case  are  examined  and  compared  with  the  de- 
tails of  the  case  at  bar,  it  will  be  seen  that  they  differ  ma- 
terially. For  instance,  a  sentence  from  their  opinion,  on 
page  600,  the  Supreme  Court  says :  "But  the  mode  of  do- 
ing business  by  the  two  kinds  of  carriers  is  essentially  dif- 
ferent." That  is,  carriers  by  sea  and  carriers  by  rail,  the 
opinion  not  recognizing,  though  not  excluding,  that  car- 
riage by  water  on  our  lakes  is  carriage  by  sea.  "Railroad 
companies  have  warehouses  in  which  to  store  freights,. 
Owners  of  vessels  have  none.  Railroads  discharge  car- 
goes carried  by  them.  Carriers  by  ship  do  not,  but  it  is 
done  by  the  consignee.  The  masters  of  vessels  provide  in 


the  contract  for  demurrage,  while  railroads  do  not,  and 
it  is  seen  these  essential  differences  are,  under  the  rules 
of  the  maritime  law,  wholly  inapplicable  to  railroad  car- 
riers." 

It  appears  in  the  evidence,  and  perhaps  the  Court 
should  take  judicial  cognizance  of  the  fact,  that  the  rail- 
way company  has  no  warehouses  for  the  storage  of  coal 
shipped  in  bulk.  Another  difference  in  facts  is  that  the 
railroad  company  is  required  by  law  to  deliver  its  coal 
into  the  complainant's  yard.  Again,  it  is  the  duty  of  the 
consignee  to  unload  this  coal  the  same  as  it  is  the  duty  of  a 
consignee  to  unload  a  vessel.  There  is  no  demurrage  as 
such,  in  a  technical  sense  o£  demurrage,  claimed  in  this 
case.  There  was  no  bill  of  lading  accompanying  the  coal, 
but  it  was  the  custom,  as  between  this  railway  company 
and  this  consignee  and  the  consignor,  to  ship  the  coal 
without  bills  of  lading.  I  do  not  know  what  the  railway's 
custom  is.  They  have  some  sort  of  checks  or  bills  for  the 
use  of  their  conductors,  and  they  are  delivered  with  the 
goods. 

In  these  essential  facts  and  elements  the  case  at  bar 
differs  from  the  case  in  the  103d — the  Jenkins'  case. 

It  is  argued  that  the  railway  companies  might  im- 
pose great  hardships  upon  shippers  if  allowed  a  lien  upon 
freight  for  such  reasonable  charges  as  have  accrued  for 
the  use  of  cars  after  reasonable  time  has  elapsed  for  un- 
loading, and  indeed  that  might  be  so,  and  the  argument 
impressed  me  with  considerable  force.  But,  on  the  other 
hand,  if  the  railway  company  has  the  right  to  store  freight, 
such  as  coal,  upon  the  expiration  of  forty-eight  hours,  or 
whatever  time  is  considered  reasonable,  they  might  run 
the  cars  out  and  store  them  on  vacant  property  from  which 
the  cartage  would  be  more  than  the  coal  is  worth.  That 
is,  if  railways  were  inclined  to  subject  shippers  to  incon- 
venience, the  opportunities  would  be  quite  as  great  under 
one  method  of  doing  business  as  under  the  other. 

As  remarked  by  the  Supreme  Court  in  the  Jenkins' 
case,  there  can  be  no  such  lien  except  by  contract  or  where 
it  is  allowed  by  law.  There  are  many  classes  of  cases 
where  a  lien  is  allowed,  and  where,  without  any  specific 
contract  to  that  effect,  the  law  sustains  it,  such  as  inn- 
keepers, agisters,  carriers,  bailees  and  warehousemen.  De- 
murrage, as  such  technically,  cannot  be  sustained,  but  the 


52 

right  of  lien  is  not  limited  here  technically  to  the  word 
demurrage,  or  to  what  may  be  defined  demurrage.  When 
the  railway  company  placed  the  cars  in  the  yard,  the  rela- 
tion of  common  carrier  ceased,  it  seems  to  me.  When 
these  cars  were  shunted  onto  the  side  track  in  the  yards 
of  the  complainant,  then  the  relation  of  common  carrier 
ceased;  but  was  not  the  railway  company  furnishing  stor- 
age for  this  party?  Substantially  the  same  relation  exists 
when  cars  were  set  upon  a  side  track  ready  to  be  delivered 
and  complainants  did  not  receive  them.  It  seems  to  me 
that  the  company,  under  such  circumstances,  would  be 
sustained  in  so  leaving  the  coal  in  cars,  and  considering 
the  class  of  freight  it  is  a  proper  place  to  store  it.  It  would 
not  be  the  proper  place  to  store  paper,  such  as  was  the 
subject-matter  of  the  Jenkins'  case,  but  it  would  be  for 
bulk  coal.  Wrhether  it  be  called  demurrage,  or  car  ser- 
vice, or  whatever  it  may  be,  it  seems  that  the  company  is 
entitled  to  a  lien  for  proper  charge.  If  they  make  an  un- 
reasonable charge,  the  plaintiff  can  make  tender,  replevin 
or  pay  under  protest. 

It  is  claimed  that  the  railway  company  has  the  right 
to  sue  for  the  charge,  whatever  it  might  be.  That  is  un- 
doubtedly true,  but  in  this  case  the  proof  shows  that  this 
coal  is  sometimes  sold  in  car-load  lots  from  one  person 
to  another,  and  passes  through  several  hands  while  it  re- 
mains on  the  cars  of  the  company;  that  the  complainants 
sell  it  in  bulk  and  have  the  cars  put  into  their  yards  and 
the  purchaser  takes  the  coal  off  the  cars,  the  purchaser 
doing  the  unloading  and  the  complainants  having  nothing 
to  do  with  it. 

If  the  company  is  to  look  to  the  parties  in  a  civil  suit 
for  the  money,  they  have  to  sue  as  many  parties  as  were 
owners  of  the  coal  while  it  remained  on  the  cars.  I  do 
not  think  that  a  reasonable  rule  for  the  court  to  establish. 
The  railways  have  no  right  to  throttle  a  man  as  this  com- 
pany undertook  to,  according  to  the  bill  originally  filed. 
They  cannot  hold  freight  in  their  possession  for  charges 
which  have  accrued  upon  freight  delivered,  or  for  other 
general  indebtedness.  That  was  the  allegation  of  the  bill 
as  originally  filed,  but  in  the  case  as  finally  submitted  to 
the  Court,  the  question  raised  was  as  to  the  right  of  the 
company  to  hold  freight  for  car  service  or  storage  charges 
which  had  accrued  upon  that  particular  freight.  The 


53 

amount  involved  in  the  case  is  small,  and  the  Court  has 
not  taken  the  time  to  exhaustively  review  the  figures  and 
accounts  submitted  in  evidence,  for  I  apprehend  that  it 
makes  little  difference  to  counsel  whether  the  amount 
awarded  be  a  few  dollars  more  or  less,  for  whether  the 
claim  be  for  one  dollar  or  for  forty  dollars  or  more,  the 
principle  is  the  same,  and  it  is  the  question  of  law  which 
the  Court  must  decide  and  which  is  of  importance  in  the 
case.  Therefore  the  finding  of  the  master  as  to  the 
amount  due  the  railroad  company  is  not  disturbed. 

So  far  as  I  have  seen  or  examined  the  facts  of  the  cases 
like  the  Jenkins'  case,  which  hold  that  the  railway  com- 
pany must  unload  and  store,  the  freight  involved  was  such 
as  could  be  unloaded  in  warehouses.  None  of  the  cases 
applied  to  property  such  as  coal,  which  cannot  be  readily 
and  practically  unloaded  and  stored. 

Perhaps  the  proper  order  would  be  the  dismissal  of 
the  bill  for  want  of  equity,  but  counsel  may  confer  to- 
gether and  prepare  an  order  in  accordance  with  the  opin- 
ion of  the  Court. 


SUPREME  COURT    OF  APPEALS   OF  VIRGINIA 
AT  RICHMOND. 

90  VA.,  393;  18  S.  E.  R.,  516. 
56  A.  &  E.  R.  R.  CAS.,  330. 

JANUARY  11,  1894. 


NORFOLK  &  WESTERN  RAILROAD  CO. 

VS. 
ADAMS,  CLEMENT  &  CO. 

OPINION  OF  THE  COURT. 


FAUNTLEROY,  J.— The  petition  of  the  Norfolk  & 
Western  Railroad  Co.  complains  of  a  judgment  of  the  Cir- 


54 

cuit  Court  of  Roanoke  County,  rendered  therein  -at  the 
April  term,  1893,  in  favor  of  Adams,  Clement  &  Co. 
against  the  said  Norfolk  &  Western  Railroad  Co.,  for  the' 
sum  of  $488.00,  with  interest  thereon  from  September  1, 
1891,  until  paid,  in  which  suit  the  said  Adams,  Clement  & 
Co.  are  plaintiffs  and  the  petitioner  is  defendant. 

The  suit  is  an  action  of  assumpsit  against  the  Nor- 
folk &  Western  Railroad  Co.  to  recover  back  certain  sums 
of  money  alleged  to  have  been  illegally  exacted  from  and 
paid  by  the  said  Adams,  Clement  &  Co.,  lumber  dealers, 
to  the  said  Norfolk  &  Western  Railroad  Co.  for  car  ser- 
vice or  demurrage  charges  under  car  service  rules,  and 
a  verdict  was  rendered  and  a  judgment  entered  for  the 
full  amount  of  the  plaintiff's  claim.  The  case  is  here  upon 
a  writ  of  error  obtained  by  the  defendant  company. 

It  is  well  settled,  in  this  State  and  in  other  States,  that 
a  common  carrier  may  make  reasonable  rules  and  regula- 
tions for  the  convenient  transaction  of  business  between 
itself  and  those  dealing  with  it — either  as  passengers  or 
as  shippers.  See  Norfolk  &  Western  Railroad  Co.  vs 
Wysor,  82  Va.  (Hansbrough),  250;  Norfolk  &  Western 
Railroad  Co.  vs.  Irvine,  84  Va.  (Hansbrough),  553.  That 
this  rule  is  reasonable  and  proper,  and  that  the  railroad 
company  can  make  such  a  charge,  has  been  decided  in  a 
number  of  States,  the  question  never  having  arisen  before 
in  this  State. 

See  Miller  et.  al.  vs.  Georgia  Railroad  &  Banking 
Company,  reported  in  American  and  English  Railroad 
Cases,  vol.  50,  page  70. 

Miller  vs.  Mansfield,  112  Mass.,  260;  Union  Pacific, 
Denver  &  Gulf  Railroad  Company  vs.  Cooke,  American 
and  English  Railroad  Cases,  vol.  50,  page  89. 

Kentucky  Wagon  Manufacturing  Company  vs.  Louis- 
ville &  Nashville  Railroad  Company,  American  and  Eng- 
lish Railroad  Cases,  vol.  50,  page  90. 

C,  M.  &  St.  Paul  Railway  Company  vs.  Pioneer  Fuel 
Company,  Beach  Railway  law,  section  924,  and  cases  there 
cited;  Jones  on  Liens,  section  284,  and  cases  cited;  Law- 
son's  Rights  and  Remedies,  vol.  4,  page  3146,  sections 
1831  and  1832;  Wood's  Railway  Laws,  pages  1592,  1593 
and  1600;  Waterman  on  the  Law  of  Corporations,  vol.  2, 
pages  245  and  246;  American  and  English  Enc.  of  Law, 


55 

vol.  2,  pages  878  to  881;  and  Notes:    Redfield  on  the  Law 
of  Railways,  6th  edition,  pages  67  to  83. 

In  addition  to  this  long  line  of  authorities  holding 
the. right  of  a  railroad  company  to  make  such  charge,  and 
the  reasonableness  of  such  charge,  there  have  been  num- 
erous investigations  and  rulings  upon  the  point  by  the 
railroad  commissioners  of  the  various  States.  In  Texas 
the  railroad  commissioner,  Judge  Reagan,  after  full  in- 
vestigation, made  an  order  fixing  $3.00  per  day,  per  car, 
as  a  reasonable  charge  for  delay  in  unloading,  after  48 
hours'  notice.  The  railroad  commissioner  of  Illinois,  and 
those  of  other  States,  after  full  investigation,  have  decided 
in  favor  of  the  right  and  reasonableness  of  such  a  charge ; 
and  when  it  is  considered  that  these  railroad  commission- 
ers are  appointed  for  the  express  purpose  of  regulating 
railroads  in  the  interest  of  the  public,  the  weight  of  their 
decisions  as  to  the  reasonableness  of  such  charge  is  ap- 
parent. 

It  is  contended  that  the  sections  of  the  Code  of  Vir- 
ginia, 1887,  1202  and  1203,  make  such  a  charge  illegal, 
and  the  judge  of  the  trial  court  took  the  view  of  the  plain- 
tiff, and  instructed  the  jury  that,  under  the  law  of  Virginia, 
such  charge  is  unlawful,  whether  it  be  reasonable  or  not. 

We  think  that  the  trial  court  erred  in  so  holding,  and 
in  so  instructing  the  jury.  The  charge  made  by  the  rail- 
road company  for  the  detention  of  its  cars,  and  the  occu- 
pation of  its  track  after  due  notice,  is  not  a  charge  for 
transportation,  storage  or  delivery  of  freight,  and  it  is  not 
a  device  or  a  pretext  for  exacting  of  the  shipper  or  the 
consignee  more  than  the  rate  prescribed  by  law  and  fixed 
by  schedule ;  but  it  is  for  the  use  and  occupation  of  the 
cars  and  the  obstruction  of  their  tracks  by  the  consignee 
after  the  contract  for  transporting  and  delivering  the 
freight  had  been  fulfilled  and  ended.  After  arrival  at  the 
place  of  consignment,  and  notice  to  the  consignee  of  the 
arrival,  and  the  allowance  of  a  reasonable  time  for  the  un- 
loading of  the  cars  by  the  consignee,  according  to  his  con- 
tract obligation  to  unload,  the  duties  and  the  liabilities  of 
the  carrier  cease,  and  the  carrier  becomes  simply  a  bailee 
for  hire,  and  can  make  reasonable  rules  and  regulations 
and  charges  for  such  service  as  bailee  as- it  may  see  fit. 
Such  charges  are  not  carrier  charges  in  the  meaning,  in- 
tendment  or  prescription  of  the  statute.  Under  the  head 


56 

of  carriers,  the  American  and  English  Encyclopedia  of 
Law,  page  880,  Vol.  II :  "A  carrier  fulfilling  the  duties  of 
a  warehouseman  is  not  obliged  to  accept  the  goods  subject 
to  his  ordinary  liability.  He  may  impose  such  terms  as  he 
pleases,  and  the  consignor  (consignee),  with  notice  there- 
of, will  be  bound.  Whether  such  terms  are  or  are  not 
reasonable,  is  an  irrelevant  inquiry." 

In  a  note  to  this  section  is  the  following: 

"We  can  see  no  reason  why  a  railroad  company  as 
a  common  carrier  cannot  stipulate,  by  a  contract  express 
or  implied,  that  their  liability  as  carriers  shall  terminate 
with  delivery  at  a  particular  point,  and  they  will  assume 
no  liability  at  all  in  such  case  as  warehousemen.  If  the 
consignee  is  fully  advised,  at  the  time  of  shipment,  that 
the  company  has  no  agent  at  a  particular  station,  or  the 
place  to  which  the  consignment  is  made,  and  the  failure 
to  employ  such  agent  is  not  shown  to  be  unreasonable  in 
view  of  the  condition  of  the  company's  business,  there  is, 
in  the  absence  of  rebutting  circumstances,  an  implied  con- 
sent that  the  carrier's  responsibility  shall  be  dissolved, 
when  he  has  done  all  that  the  nature  of  the  case  permits 
him  to  do  according  to  the  reasonable  and  proper  usages 
of  his  business." 

Hutchinson  on  Carriers,  section  378,  says :  "The  cus- 
tody and  protection  of  the  goods  in  his  new  character  as 
warehouseman  is  a  distinct  service  from  that  of  their 
transportation,  which  entitles  him  to  additional  compensa- 
tion, in  consideration  for  which  he  continues  liable  for  their 
safe  keeping  as  the  hired  bailee  of  the  owner." 

The  statute  provides  solely  for  the  transportation, 
storage  and  delivery  of  freight  to  the  carrier,  to  be  shipped 
by  it,  and  delivered  at  the  other  end  of  the  journey  to  the 
consignee ;  but  it  makes  no  provision  or  regulation  for  the 
hiring  of  cars  to  be  loaded  and  unloaded  by  the  customer, 
according  to  such  contract  as  the  carrier  and  the  customer 
may  make,  express  or  implied. 

"A  railroad  company  is  not  required  by  law  to  keep 
a  warehouse  or  depot  at  every  station  along  its  route  or 
line,  and  it  may  stipulate  either  expressly  or  by  implica- 


57 

tion  that  it  will  assume  no  liability  as  warehouseman  at 
a  flag  station  where  it  has  no  depot  or  agent,  and  when 
the  consignee  is  fully  advised  at  the  time  of  shipment,  that 
the  company  has  no  depot  or  agent  at  such  station,  and 
it  is  not  shown  that  the  exigencies  of  its  business  required 
that  it  should  have  an  agent  at  the  place,  the  liability  as 
common  carrier  terminates  with  the  safe  delivery  of  the 
goods  on  the  side  track  at  that  point,  and  it  assumes  no 
liability  as  a  warehouseman."  It  is  shown  in  evidence 
that  this  rule  and  charge  of  one  dollar  a  day  for  the  un- 
reasonable and  even  long-continued  detention  of  the  car, 
and  obstruction  of  the  tracks  and  business  of  the  railroad, 
is  not  made  for  compensation  to  the  company,  but  for 
the  benefit  of  the  public  and  a  stimulus  to  the  consignee 
to  unload  the  car  and  disencumber  the  track  and  the  busi- 
ness of  the  road.  The  evidence  in  the  record  is  that  the 
car  is  much  more  valuable  to  the  company  than  the  charge 
of  $1.00  per  day;  and  it  is  manifest  that,  if  cars  can  be  de- 
layed and  held  by  shippers  or  consignees  for  months  (as 
the  record  shows  was  done  in  this  case)  without  any  regu- 
lation that  would  be  operative,  the  business  of  the  railroad 
and  the  public  service  must  necessarily  suffer.  In  view 
of  the  authorities  and  the  facts  of  this  case,  we  are  of  opin- 
ion the  money  paid  by  the  plaintiffs  to  the  defendant  com- 
pany was  properly  charged  by  the  said  company,  and  was 
due  to  it  by  the  plaintiffs,  Adams,  Clement  &  Co.,  and 
that  they  had  no  right  to  recover  it  back;  and  that  the 
Circuit  Court  of  Roanoke  County  erred  in  the  law  as  ap- 
plicable to  the  facts  of  the  case,  and  erred  in  refusing  to 
set  aside  the  verdict  of  the  jury;  that  the  judgment  com- 
plained of  is  erroneous,  and  the  same  is  reversed  and- an- 
nulled. And  this  court,  proceeding  to  enter  such  judg- 
ment as  the  Circuit  Court  ought  to  have  entered  upon 
the  pleadings,  will  dismiss  the  plaintiffs'  suit. 

Reversed. 


SUPREME    COURT,    COUNTY    OF    CHENANGO, 
N.  Y.,  MARCll,  1894. 


UNREPORTED. 


WARREN  L.  SCOTT 

VS. 

DELAWARE,     LACKA  WANNA     AND     WESTERN 

RY.  CO. 


This  action  was  duly  brought  to  trial  at  the  above 
term  of  the  Court  before  the  Court  without  a  jury,  a  jury 
trial  having  been  waived  in  open  Court,  and  the  Court  hav- 
ing heard  the  proofs  and  allegations  of  the  respective  par- 
ties, and  David  H.  Knapp,  Esq.,  of  counsel  for  the  plain- 
tiff, and  George  W.  Ray,  of  counsel  for  the  defendant,  and 
having  duly  considered  the  same  and  the  arguments  of 
said  counsel,  makes  the  following  decision  and  finds  and 
holds  as  follows:  * 

FACTS. 

I.  At  the  times  herein  mentioned,  the  plaintiff,  War- 
ren L.  Scott,  was  a  dealer  in  lumber  and  resided  at  Nor- 
wich, Chenango  Co.,  N.  Y. 

II.  At  the  same  times  the  defendant,  The  Delaware, 
Lacfkawanna  &  Western  Railway  Company,  was  a  duly 
organized  and  incorporated  railroad  company,  and  com- 
mon carrier  of  passengers  and  freight  duly  incorporated 
and  organized  under  and  pursuant  to  the  laws  of  the  State 
of  Pennsylvania  and  owned  and  operated  a  railroad  in  the 
State  of  New  York  extending  from  Buffalo,  N.  Y.,  to  Nor- 
wich aforesaid. 

III.  On  or  about  the  5th  day  of  October,  1893,  the 
plaintiff  purchased  of  Stewart  Brothers  at  Buffalo,  N.  Y., 
a  carload  of  pine  lumber  containing  13,871  feet,  and  same 
was  shipped  by  said  Stewart  Brothers  as  consignors  to  said 
Warren  L.  Scott,  the  plaintiff,  over  its  road  and  consigned 
to  said  Scott  at  Norwich,  Chenango  Co.,  N.  Y. 


59 

IV.  At  the  time  the  said  lumber  was  shipped  by  the 
said  Stewart  Brothers  as  aforesaid  the  said  consignors 
filled  out  three  shipping  bills  or  shipping  receipts  for  said 
car  of  lumber  to  be  signed  by  the  defendant  upon  blanks 
furnished  by  the  defendant,  but  kept  by  said  Stewart 
Brothers  at  their  office  for  the  purpose,  and  which  were 
dated  at  Buffalo  Station,  October  5,  1893,  in  which  the 
consignee  of  said  lumber  was  named  as  W.  L.  Scott,  Nor- 
wich, N.  Y.,  and  the  freight  rate  was  fixed  and  the  weight 
of  the  car  specified  when  weighed.  These  shipping  bills  or 
receipts  were  delivered  by  Stewart  Brothers,  the  consign- 
or, to  the  defendant  with  the  lumber  which  was  sent  from 
Buffalo  Station  to  East  Buffalo  where  the  car  was  weighed 
on  the  7th  of  October  and  then  forwarded  over  the  defend- 
ant's road  to  the  consignee.  The  rate  fixed  in  such  ship- 
ping bills  and  receipts  was  8f  cents  per  100  pounds  and 
was  a  special  rate.  The  said  shipping  bills  or  receipts  con- 
tained, among  other  things,  the  following:  Received  from 
Stewart  Bros.,  by  the  Delaware,  Lackawanna  &  Western 
Railroad  Company  the  property  described  below,  marked, 
consigned  and  destined  as  indicated  below,  which  said 
company  agrees  to  carry  to  the  said  destination.  It  is 
mutually  agreed  in  consideration  of  the  rate  of  freight 
hereinafter  named,  as  to  each  carrier  of  all  or  any  of  said 
property  over  all  or  any  portion  of  said  route  to  destina- 
tion, and  as  to  each  party  at  any  time  interested  in  all  or  any 
of  said  property,  that  every  service  to  be  performed  here- 
under  shall  be  subject  to  all  the  conditions,  whether  print- 
ed or  written,  herein  contained  upon  the  face  or  back  of 
this  receipt,  and  which  are  hereby  agreed  to  by  the  ship- 
per, and  by  him  accepted  for  himself  and  his  assigns  as  just 
and  reasonable.  Upon  all  the  conditions  whether  printed 
or  written  herein  contained  upon  the  face  or  back  of  this 
receipt,  it  is  mutually  agreed  that  the  rate  of  freight  from 
to  is  to  be  in  cents  per  100  Ibs., 

if  special,  rate  8|  cents. 

Then  followed  the  name  of  the  consignee  with  place 
of  destination  and  a  description  of  the  car  by  number  with 
the  weight  of  the  car,  and  among  the  conditions  so  re- 
ferred to  were  the  following,  printed  upon  said  shipping  re- 
ceipts or  shipping  bills,  viz. : 

"5.  Property  not  removed  by  the  person  or  party  en- 
titled to  receive  it,  within  twenty-four  hours  after  its  ar- 


6o 

rival  at  destination,  may  be  kept  in  the  car,  depot  or  place 
of  delivery  of  the  carrier  at  the  sole  risk  of  the  owner  of 
said  property,  or  may  be,  at  the  option  of  the  carrier,  re- 
moved and  otherwise  stored  at  the  owner's  risk  and  cost, 
and  there  held  subject  to  lien  for  all  freight  and  other 
charges.  The  delivering  carrier  may  make  a  reasonable 
charge  per  day  for  the  detention  of  any  car,  and  for  use 
of  track  after  the  car  has  been  held  forty-eight  hours  for 
unloading,  and  may  add  such  charge  to  all  other  charges 
hereunder,  and  hold,  said  property  subject  to  a  lien  there- 
for. Property  destined  to  or  taken  from  a  station  at 
which  there  is  no  regularly  appointed  agent,  shall  be  en- 
tirely at  risk  of  owner  when  unloaded  from  cars,  or  until 
loaded  into  cars ;  and  when  received  from  or  delivered  on 
private  or  other  sidings,  shall  be  at  owner's  risk  until  the 
cars  are  attached  to,  and  after  they  are  detached,  from, 
trains." 

"10.  Owner  or  consignee  shall  pay  freight  at  the  rate 
below  stated,  and  all  other  charges  accruing  on  said  prop- 
erty, before  delivery,  and  according  to  weights  as  ascer- 
tained by  any  carrier  hereunder;  and  if  upon  inspection 
it  is  ascertained  that  the  articles  shipped  are  not  those  de- 
scribed in  this  bill  of  lading,  the  freight  charges  must  be 
paid  upon  the  articles  actually  shipped,  and  at  the  rates 
and  under  the  rules  provided  for  by  published  classifica- 
tions." 

These  three  shipping  bills  or  shipping  receipts  when 
the  car  had  been  weighed  and  the  weight  inserted,  were 
signed  by  W.  C.  Colwell  who  was  the  freight  agent  of  the 
defendant  at  Buffalo,  and  the  defendant  retained  one  and 
the  other  two  were  immediately  returned  by  mail  to  the 
consignor,  said  Stewart  Brothers,  and  received  by  them 
duly  signed  as  aforesaid. 

Said  Stewart  Brothers  were  acquainted  with  the  con- 
tents of  said  receipts  and  were  accustomed  to  ship  lumber 
over  the  defendant's  road  and  to  fill  out  the  shipping  bills 
or  receipts  to  be  signed  and  returned  to  them  for  freight 
shipped  and  were  in  the  habit  of  having  said  shipping  re- 
ceipts and  bills,  when  signed  returned  to  them  through 
the  mail. 

All  the  conditions  above  given  were  printed  in  and 
upon  the  form  or  blank  in  use  by  the  defendant  at  all 
points,  and  the  plaintiff  had  received  freight  over  the  de- 


6i 

fendant's  road,  and  sometimes  had  received  the  shipping 
bills  and  receipts  for  said  freight,  and  had  also  shipped 
freight  over  the  defendant's  road  at  Norwich,  N.  Y.,  and 
had  used  and  received  from  the  defendant  shipping  bills 
and  receipts  for  freight  shipped  by  him  over  their  road 
filled  out  upon  the  same  fornts  or  blanks  and  containing 
the  same  conditions. 

V.  The  above  shipping  bills  and  receipts  with  the  con- 
ditions above  stated  formed  the  contract  between  the  con- 
signors and  the  defendant,  and  the  plaintiff  and  the  de- 
fendant, for  the  transportation  and  delivery  of  said  lum- 
ber, and  was  a  valid  and  binding  contract. 

VI.  The  defendant  was  also  a  member  of  the  Cen- 
tral New  York  Car  Service  Association,  and  the  defendant 
had   adopted   the   car    service   rules    of   said    association, 
among  which  were  the  following : 

"1.  A  charge  of  one  dollar  ($1.00)  per  car  per  day 
or  fraction  of  a  day  shall  be  made  for  car  service  and  use 
of  track  on  all  cars  not  unloaded  within  forty-eight  (48) 
hours  after  arrival,  not  including  Sundays  or  legal  holi- 
days, except  as  hereinafter  provided. 

"9.  A  full  record  shall  be  made  of  the  arrival  and  dis- 
position of  all  cars  subject  to  car  service  rules,  and  the 
agent  of  each  road  shall  make  daily  reports  to  the  manager 
on  such  forms  and  in  such  manner  as  may  be  prescribed 
by  him  from  time  to  time." 

"10.  On  cars  arriving  after  seven  o'clock  (7)  a.  m.,  car 
service  will  be  charged  after  the  expiration  of  forty-eight 
(48)  hours  from  seven  (7)  a.  m.  following.  On  cars  ar- 
riving after  twelve  (12)  o'clock  noon,  car  service  will  be 
charged  after  the  expiration  of  forty-eight  (48)  hours  from 
noon  following." 

"11.  When  cars  are  delayed  after  arrival  beyond  the 
time  allowed  by  Rule  10,  on  account  of  failure  of  shipper 
or  consignee  to  give  prompt  notice  of  disposition,  the  time 
so  consumed  shall  be  considered  a  part  of  the  forty-eight 
(48)  hours  allowed  for  unloading." 

'23.  Car  service  charges  shall  be  collected  in  the  same 
manner  and  with  the  same  regularity  and  promptness  as 


62 

transportation  charges,  and  agents  will  report  to  the  man- 
ager of  the  association  the  name  of  any  corporation,  firm 
or  individual  refusing  to  pay  the  same." 

"24.  Property  upon  which  car  service  charges  have 
accrued  shall  be  held  by  trje  road,  and  the  consignee  will 
not  be  allowed  to  remove  the  same  from  the  company's 
premises,  or  from  cars  on  its  team  tracks,  until  the  charges 
that  have  accrued  thereon  are  paid." 

The  substance  of  a  part  of  such  rules  had  been  incor- 
porated in  the  aforesaid  conditions. 

A  short  time  prior  to  the  shipping  of  the  above  speci- 
fied lumber  over  the  defendant's  road,  the  plaintiff  had 
received  other  lumber  over  the  same  road,  and  same  hav- 
ing remained  unloaded  more  than  forty-eight  hours  after 
being  placed  for  delivery,  the  defendant  had  claimed  pay 
for  car  service  and  use  of  track  on  such  car,  and  the  exist- 
ence of  such  rules  and  the  amount  of  the  charge  made 
and  claimed  had  been  made  known  to  the  plaintiff  who 
made  no  objection  to  the  amount,  but  denied  the  defend- 
ant's right  to  make  such  a  charge  and  his  liability  to  pay, 
and  he  had  refused  to  pay  the  amounts  charged  or  any- 
thing for  car  service  and  use  of  track,  or  demurrage,  as  it 
was  usually  termed.. 

VII.  The   said   carload   of   lumber   so  forwarded  by 
Stewart  Brothers  to  the  plaintiff  from  East  Buffalo  on  the 
7th  day  of  October,  1893,  reached  Norwich  aforesaid  on 
the  morning  of  October  9,  1893,  and  was  placed  for  de- 
livery at  one  o'clock  p.  m.  of  the  same  day  on  the  switch, 
and  at  a  convenient  place  for  unloading,  and  between  7 
and  9  o'clock  in  the  forenoon  of  the  same  day  the  defend- 
ant's agent  notified  the  plaintiff  or  his  agents  and  servants, 
at  his  place  of  business,  in  the  usual  manner,  that  the  car 
had  arrived  and  would  be  placed  for  delivery  at  noon  of 
that  day.     On  the  llth  the  defendant  paid  the  freight  on 
said  carload  of  lumber. 

VIII.  Between  the  llth  and  the  13th  days  of  October 
the  plaintiff  removed  a  portion  of  said  lumber,  and  on  the 
afternoon  of  October  13th  a  portion  of  said  lumber  re- 
mained in  said  car  and  the  plaintiff  was  engaged  in  un- 
loading it,  and  5,713  feet  of  lumber  then  remained  in  the 
car  which  was  worth  $42.50  per  thousand. 


63 

IX.  Under  the  said  rules  and  regulations  of  the  de- 
fendant charges  for  car  service  and  use  of  track  at  one 
dollar  per  day  commenced  to  accrue  at  7  o'clock  a.  m. 
on  the  12th  day  of  October,  and  in  the  afternoon  of  the 
I3th  day  of  October  two  dollars  for  car  service  and  use 
of  track  on  said  car  had  accrued. 

X.  During  the  afternoon  of  October  13th  the  defend- 
ant by  its  agent,  W.  S.  Wagner,  who  was  the  freight  agent 
at  Norwich,  N.  Y.,  made  out  and  presented  a  bill  to  the 
plaintiff  for  such  car  service  and  use  of  track  for  two  days, 
to  wit:  the  12th  and  13th  days  of  October,  and  presented 
the  same  to  the  said  Warren  L.  Scott,  the  plaintiff,  for 
payment.    The  plaintiff  refused  to  pay  said  charges,  where- 
upon the  defendant,  by  its  said  agent,  notified  the  said  Scott 
that  if  he  did  not  pay  said  charges  he  should  close  the  car, 
and  said  Scott  refused  to  pay  said  charges  or  any  part  or 
portion  thereof,  making  no  objections  to  the  amount  or  to 
the  reasonableness  of  the  charge,  whereupon  the  defend- 
ant, by  its  said  agent,  closed  said  car. 

XL  At  7  o'clock  on  the  morning  of  October  12  the 
said  car  of  lumber  had  been  held  more  than  forty-eight 
hours  for  unloading,  and  the  charge  of  two  dollars  for 
the  detention, of  said  car  and  use  of  track  thereafter  was 
a  reasonable  charge. 

XII.  The   defendant   asserted   his   lien   therefor   and 
gave  due  notice  to  the  plaintiff  thereof. 

XIII.  Thereafter  and  on  the  27th  day  of  October, 
1893,  the  plaintiff  commenced  this  action,  claiming  that 
the  defendant  had  converted  the  lumber  remaining  in  said 
car  at  the  time  it  was  closed  as  aforesaid. 

And  from  the  above  facts  I  do  find  and  hold  as 

CONCLUSIONS  OF  LAW. 

I.  That  the  above  and  aforesaid  shipping  bill  and  re- 
ceipt or  bill  of  lading  formed  and  constituted  a  valid  and 
binding  contract  between  the  said  defendant,  The  Dela- 
ware, Lackawanna  &  Western  Railway  Company,  and  the 
said  consignors,  Stewart  Bros.,  and  the  consignee  and 
plaintiff,  Warren  L.  Scott,  as  modified  and  limited  as  to 


64 

the  placing  of  the  car  and  the  time  demurrage  on  charge 
for  car  service  and  use  of  track  should  commence,  and  as 
to  the  amount  of  such  charge,  by  the  said  rules  and  regu- 
lations of  the  defendant. 

II.  That  such  charge  of  one  dollar  per  day  for  car 
service  and  use  of  track  was  a  reasonable  charge. 

III.  That  the  sum  of  two  dollars  had  accrued  due  the 
defendant  from  the  plaintiff  for  car  service  and  use  of  track 
under  said  contract  at  the  time  defendant  closed  said  car 
and  refused  to  permit  the  plaintiff  to  remove  the  balance 
of  said  lumber  unless  such  charge  was  paid,  and  the  d.e- 
fendant  had  a  lawful  lien  on  said  lumber  therefor  and  the 
right  to  hold  said  lumber  until  such  sum  duly  demanded 
was  paid. 

IV.  That  such  lien  was  not  waived  by  the  defendant. 

Note : — The  question  was  raised,  whether  the  railroad 
company  waived  its  right  to  charge  for  car  service  and 
use  of  track,  by  accepting  the  freight  charges  and  taking 
the  consignee's  receipt  for  the  property. 

The  Court  holds  that  this  right  was  not  waived,  for 
the  reason,  that,  to  hold  otherwise  would  permit  a  con- 
signee to  hold  a  car  indefinitely,  provided  the  charge  for 
transportation  was  paid,  and  receipt  given  for  the  prop- 
erty. 

V.  The  defendant  rightfully  detained  said  lumber  and 
did  not  convert  the  same  to  its  own  use  or  at  all. 

VI.  The  plaintiff  has  not  proved  a  cause  of  action. 

VII.  The  defendant  is  entitled  to  a  judgment  dismiss- 
ing the  complaint  of  the  plaintiff  on  the  merits  with  costs. 

Judgment  is  ordered  and  directed  accordingly,  to  be 
entered  by  the  clerk  of  the  County  of  Chenango,  N.  Y. 

CHARLES  E.  PARKER, 
Justice  of  the  Supreme  Court. 


COUNTY    COURT  WINNEBAGO   COUNTY,   WIS., 
MAY,  1894. 


UNREPORTED. 

CHICAGO  &  NORTHWESTERN  RY.  CO. 

VS. 
JOHN  STRANGE  PAPER  CO. 


Demand,  $257.00. 

Suit  commenced  April  3rd,   1893,  both   sides   agree- 
ing to  have  case  tried  before  the  Court  without  a  jury. 

May  31st,  1894.  judgment  entered  in  favor  of  plain- 
tiff and  against  the  defendant  for  full  amount  sued  for. 


COUNTY  COURT,  WINNEBAGO   COUNTY,   WIS., 
MAY,  1894. 

UNREPORTED. 


MILWAUKEE  &  NORTHERN  R.  R.  CO. 

VS. 
JOHN  STRANGE  PAPER  CO. 


Demand,  $596.00. 

Suit  commenced  April  3rd,  1893,  both  sides  agreeing 
to  trial  of  case  before  the  Court  "without  a  jury. 

May  31st,  1894,  judgment  entered  in  favor  of  the  plain- 
tiff and  against  the  defendant  for  full  amount  claimed. 


66 

The  defendant  did  not  dispute  records  of  cars,  nor  ques- 
tion right  of  railroad  companies  to  collect  car  service 
charges,  but  advanced  a  counter  claim,  based  on  alleged 
delays  on  the  part  of  the  railroad  companies  in  placing  cars. 

The  Court  found : 

1st.  That  the  allegations  of  the  plaintiff,  as  made,  were 
true. 

2nd.     That  the  defendant  withdrew  the  counter  claim. 

3rd.  That  defendant  owed  plaintiff  the  full  amount 
sued  for,  and  judgment  for  the  plaintiff  was  entered  ac- 
cordingly. 


COURT  OF  COMMON  PLEAS,  NO.  3,  HAMILTON 
COUNTY,  O.,  OCTOBER,  1894. 


UNREPORTED. 


DAWSON,  BLACRMORE  &  CO.,  ET.  AL. 

VS. 
C.  C.  C.  &  ST.  L.  R'Y.  CO. 


CHARGE    BY    HON.    HOWARD    B.    HOLLISTER, 

JUDGE. 


Gentlemen  of  the  Jury: 

This  is  an  action  brought  by  Dawson,  Blackmore  & 
Company,  against  the  three  C's  &  St.  L.  Railroad  Com- 
pany, commonly  known  as  the  "Big  Four,"  for  the  recov- 
ery of  eight  dollars,  which  the  plaintiff  claims  was  extorted 
from  it,  or  obtained  from  it  against  its  protest,  and  in  such 
a  way  that  in  order  to  obtain  its  property,  it  was  compelled 
to  pay,  or  go  without  the  property. 


67 

It  is  claimed  by  the  plaintiff  that  the  eight  dollars  paid 
by  it  was  paid  under  protest.  A  voluntary  payment,  made 
by  one  of  a  charge  against  him,  can  not  be  recovered  back 
by  him,  except  under  a  mistake  of  facts.  There  is  no 
charge  in  this  case  that  there  was  a  mistake  of  facts.  But 
a  recovery  may  also  be  had  where  property  to  which  the 
individual  owning  it  is  entitled  is  detained  from  him  to 
pay  any  charge  which  has  been  illegally  made  against  him 
by  the  person  who  has  the  property  in  charge,  to  which 
the  plaintiff  is  entitled.  But  such  payment  must  be  made 
under  circumstances  showing  that  the  intention  was  abso- 
lute, and  that  he  could  not  obtain  his  property  without  the 
payment  of  the  sum  demanded.  Under  those  circum- 
stances, he  may  recover,  if  you  find  them  to  exist,  the  money 
so  paid,  back.  And  the  testimony  in  this  case  on  that  sub- 
ject is  confined  to  the  testimony  of  two  witnesses,  one  on 
either  side  of  the  case.  You  will  have  to  weigh  the  testi- 
mony as  given  by  them  between  them,  and  you  will  observe 
in  the  weighing  of  that  testimony,  the  rule  which  will  per- 
tain also  to  the  other  questions  in  the  case,  that  the  plain- 
tiff must  establish  his  case  by  a  fair  preponderance  of  the 
testimony.  That  is  to  say,  that  the  weight  of  the  testimony 
must  be  on  his  side  of  the  case.  It  is  not  necessary  that 
that  weight  shall  be  of  any  considerable  amount.  It  is 
sufficient  that  it  weigh  down  the  scale. 

If  you  find,  under  the  rules  I  have  given  you,  that 
there  was  no  demand  made  upon  the  plaintiff  for  the  pay- 
ment of  eight  dollars,  in  the  sense  that  without  the  pay- 
ment, the  property  could  not  be  obtained,  then  you  will 
find  for  the  defendant.  The  money  in  such  case  would 
have  been  paid  voluntarily.  If  you  find,  however,  that 
there  was  a  demand  for  the  payment,  and  as  a  condition 
preceding  the  delivery  of  the  goods,  the  payment  had  to  be 
made,  from  the  statement  of  witnesses  and  the  testimony  in 
the  case,  then  you  will  find  that  the  payment  was  involun- 
tary, and  may  be  recovered,  and  you  will  find  a  verdict  on 
that  issue  for  the  plaintiff.  Even  under  the  circumstances 
of  the  case,  as  the  law  will  further  be  given  to  you,  if  it  is 
a  reasonable  regulation,  there  could  be  no  recovery. 

It  is  the  duty  of  a  railroad  Company,  when  freight   is. 
delivered  for  shipment,  to  deliver  the  bill  of  lading  as  it 
is  called,  to  the  shipper,  and  then  to  transmit  the  goods, 
within  a  reasonable  time,  to  the  place  of  destination.     Any 


68 

information  of  the  contents  of  a  bill  of  lading  that  may 
have  come  to  the  shipper  after  the  goods  are  shipped,  has 
no  binding  force  upon  him;  and  if  you  find  that  before 
these  goods  were  transmitted,  that  a  bill  of  lading  was 
delivered  to  the  shipper  of  the  goods,  then  I  charge  you 
that  the  contents,  under  the  circumstances  of  the  case,  of 
the  bill  of  lading,  are  chargeable  to  the  s'hipper. 

It  is  true  that  the  law  is  general  that  any  restrictions 
in  bills  of  lading,  concerning  which  there  is  not  an  express 
agreement,  and  which  limit  is  what  is  known  as  the  com- 
mon law  liability  of  a  common  carrier,  of  which  a  rail- 
road is  one,  are  not  binding  upon  the  shipper,  unless  they 
are  brought  to  his  notice,  and  he  especially  assents  thereto. 

And  that  involves  the  question  whether  or  not  a  charge 
of  the  nature  of  the  charge  made  by  the  testimony  in  this 
case  is  such  a  charge  as  was  within  the  process  of  the  law, 
as  announced  by  the  decisions  which  now  go  to  make  up 
the  common  law.  There  was  a  rule  of  common  law  where- 
by a  common  carrier  by  water  might,  after  reaching  the 
destination  and  notice  to  the  consignee  of  the  goods  to 
remove  the  goods,  charge  a  reasonable  sum,  after  a  reas- 
onable time  had  elapsed  within  which  the  consignee  had 
not  removed  goods.  That  reasonable  sum  was  such  sum 
as  the  vessel  could  fairly  have  earned  during  the  time  that 
the  consignee  neglected  to  take  the  goods  away  after  notice 
that  they  were  there,  and  after  reasonable  time  to  take  them 
away.  The  principle  applicable  to  those  cases  is  applicable 
to  the  case  of  railroads;  exactly  the  same.  And  if  there 
is  no  decision  in  England  on  the  subject,  as  announcing 
the  common  law,  the  practice  of  the  common  law  is  the 
same,  and  is,  I  charge  you,  applicable  in  the  State  of  Ohio, 
to  railway  cases. 

They  have,  after  receiving  the  goods  and  taking  them 
to  the  place  of  destination,  a  right,  after  giving  the  notice 
upon  their  arrival  to  the  consignee,  to  charge  a  reasonable 
sum  for  demurrage,  for  storage,  in  the  nature  of  demur- 
rage, as  explained  to  you.  What  that  sum  is,  is  an  amount 
which  the  cars  in  which  the  grain  is  left,  if  it  is  grain  in 
any  given  case,  might  have  earned  during  such  time  as 
the  consignee,  after  notice,  and  a  reasonable  time  within 
which  to  remove,  has  permitted  the  cars  to  remain  in  the 
yards  of  the  railroad  company. 


69 

It  is  in  evidence  that  the  time  of  detention,  the  time  of 
redemption,  the  time  within  which  the  consignee  might 
take  away  goods,  was  forty- eight  hours  after  arrival  of  the 
goods.  It  is  in  evidence  that  notice  was  sent  to  the  con- 
signee on  the  day  of  the  arrival  of  the  goods. 

If  you  find  from  the  testimony  in  this  case  that  notice 
was  sent  to  the  consignee,  which  was  Williamson,  who 
was  also  the  shipper,  after  the  arrival  of  the  goods,  and 
within  the  first  twelve  hours  or  other  reasonable  time,  leav- 
ing enough  time  within  which  the  goods  might  have  been 
removed  by  the  consignee  from  the  ground,  then  I  charge 
you  that  the  railroad  company  had  given  a  reasonable  no- 
tice of  the  arrival  of  the  goods. 

If  you  find  that  the  custom,  where  the  name  of  the 
consignee  was  not  familiar  to  the  railroad  company,  was 
to  give  notice  to  the  Chamber  of  Commerce,  and  such 
notice  was  given  within  such  reasonable  time,  as  I  have 
said,  then  I  charge  you  that  that  notice  is  a  good  notice, 
and  was  all  that  was  required  of  the  railroad  company. 

But  to  go  back;  as  I  have  said,  the  right  then,  that 
the  Railroad  Company  had  to  charge  this  demurrage,  was 
a  common  law  right,  and  inasmuch  as  it  was  a  common 
law  right,  the  rule  before  stated,  that  an  express  assent 
on  the  part  of  the  shipper  to  a  clause  in  a  bill  of  lading  was 
necessary  where  a  common  law  right  was  to  be  restricted; 
that  in  this  case  by  the  insertion  of  that  clause  in  the  bill 
of  lading,  that  stipulation,  to  the  effect  that  demurrage 
would  be  charged,  was  not  an  abridgment  or  a  restriction 
of  the  common  law  right  by  the  Railroad  Company,  and 
that  under  those  circumstances  it  was  not  necessary  that 
that  special  clause  should  be  brought  home  to  the  notice 
of  the  shipper,  and  any  especial  agreement  made  or  express 
agreement  made  with  respect  to  it;  that  under  those  cir- 
cumstances, the  stipulation  being  in  the  bill  of  lading,  if 
you  find  that  the  bill  of  lading  as  delivered  before  the  car 
was  shipped,  did  bring  home  notice  to  the  shipper,  and 
that  he  is  bound  by  it.  But  he  is  bound  by  it  without  any 
special  contract.  And  further,  that  when  a  shipper  delivers 
to  another  to  whom  it  may  have  been  sold,  the  shipper 
and  the  consignee  being  the  same,  the  bill  of  lading  is 
delivered  to  the  one  to  whom  he  has  sold  it,  and  the  one 
to  whom  he  has  sold  it  is  bound  by  the  same  conditions 


yo 

he  is,  and  is  bound  by  the  information  contained  in  the  bill 
of  lading  that  there  would  be  a  reasonable  charge  for  de- 
murrage if  after  notice  here  at  Cincinnati,  the  goods  were 
not  removed  within  a  reasonable  time.  If  you  find  that 
a  notice,  such  as  I  have  described,  was  sent  out  by  the 
Railroad  Company,  to  the  consignee,  here  at  Cincinnati, 
Williamson  &  Company,  and  that  also  within  forty-eight 
hours  that  the  cars  could  have  been  unloaded,  the  forty- 
eight  hours  also  covered  the  time  within  which  notice  was 
given  that  the  car  could  have  been  unloaded  by  the  con- 
signee before  the  expiration  of  that  time,  then  I  charge  you 
that  forty-eight  hours  is  a  reasonable  time  within  which  the 
car  might  have  been  unloaded  by  the  consignee. 

If  you  find  from  the  testimony  that  the  car  could  have 
earned  more  to  the  Railroad  Company  than  a  dollar  a  day, 
then  the  sum  of  one.  dollar,  I  charge  you,  was  not  an  un- 
reasonable sum  to  charge  for  that  service. 

There  remains  the  important  question,  the  right  of 
an  agent  of  the  defendant  to  make  a  contract  relative  to 
notice  of  who  was  the  owner  of  the  goods  shipped  under 
the  circumstances  under  which  these  goods  were  shipped. 
The  ownership  of  goods  of  this  kind  shipped  in  this  way, 
is  indicated  by  the  existence  of  the  paper  called  the  bill  of 
lading.  The  delivery  of  the  bill  of  lading  by  the  one  to 
another,  carries  with  it  the  title  to  the  property. 

It  is  in  evidence  that  the  rule  was,  of  the  Railroad 
Company,  and  known  to  the  trade  generally  dealing  with 
Railroads,  that  notice  was  given  of  the  ownership  by  the 
delivery  of  bills  of  lading,  or  upon  written  order  of  the 
owner  to  the  Railroad  Company  to  deliver  to  some  one 
else.  That  regulation  is  a  very  reasonable  one,  growing 
out  of  the  fact  that  the  paper  itself  shows  the  title  to  the 
property,  and  its  delivery  carries  with  it  the  title.  The  mere 
say  so  of  any  individual  that  he  is  the  owner  of  such  prop- 
erty, is  entirely  ineffectual.  It  amounts  to  nothing.  The 
Railroad  could  not  act  upon  it  in  the  delivery  of  the  goods 
safely,  because  if  they  did,  frequently  opportunities  would 
come  for  dishonest  men  to  announce  themselves  as  the 
owner  of  the  property  and  receive  it  from  the  Railroad 
Company  to  its  damage,  because  it  would  have  to  respond 
to  the  owner  of  the  goods  if  they  delivered  them  to  some 
one  who  was  not  entitled  to  them. 


It  is  also  in  evidence  that  on  occasions,  verbal  notices 
were  given  to  the  Railroad  Company  that  the  property 
belonged  to  some  one  or  other,  and  that  those  verbal 
notices  were  accurate.  There  is  no  rule  more  clearly  estab- 
lished than  that  the  principal  is  bound  by  the  act  of  his 
agent  acting  within  the  scope  of  his  authority.  If  you  find 
that  the  agent  of  the  defendant  acted  within  the  scope  of 
his  authority  in  receiving  verbal  notice,  and  that  he  did  in 
fact  receive  a  verbal  notice,  then  such  notice  would  Jbe  a 
notice  to  his  principal,  the  Railroad  Company. 

Whether  a  notice  of  that  sort  was  given  in  this  case 
is  the  question  for  you  to  determine.  If  a  notice  merely 
came  from  Mr.  Louden,  that  is  to  say,  if  Mr.  Louden  said 
that  he  was  the  owner  of  the  goods,  it  would  amount  to 
nothing  more  than  that  he  claimed  to  be  the  owner  of  the 
goods,  and  under  those  circumstances,  the  Railroad  Com- 
pany, through  its  agent,  would  not  be  bound  by  his  state- 
ment. But  if  the  owner  of  the  goods,  the  shipper,  with  the 
individual  to  whom  he  has  sold  the  goods,  in  other  words, 
if  Williamson  and  Louden  went  to  Mr.  Campbell,  and  ex- 
pressly stated  to  him  that  Williamson  had  sold  the  goods 
to  Dawson,  Blackmore  &  Co.,  and  Campbell  knew  that 
Louden  was  a  member  of  the  firm  of  Dawson,  Black- 
more  &  Co.,  and  thereupon  expressly  agreed  that  he  would 
waive  what  is  the  usual  course  in  such  cases,  if  you  find 
that  the  usual  course  was  to  require  the  delivery  of  the 
bill  of  lading,  or  a  written  order,  then,  under  those  cir- 
cumstances, I  charge  you  that  the  Railroad  Company  had 
notice  that  Dawson,  Blackmore  &  Co.,  were  the  owner  of 
the  goods.  In  that  connection,  you  will  bear  in  mind,  if 
you  find  that  the  custom  was  to  deliver  bills  of  lading 
or  written  orders,  that  at  the  time  that  it  was  claimed  by 
Williamson  and  Louden,  that  statements  were  made  to 
Campbell  to  the  effect  that  Louden  and  Dawson,  Black- 
more  &  Company,  were  the  owner,  had  in  their  posses- 
sion, or  in  the  possession  of  one,  or  either  of  them,  the 
bill  of  lading  itself,  if  you  so  find  the  fact  to  be,  which  is 
the  evidence  and  the  best  evidence  of  the  passing  of  title 
from  one  to  another;  that  fact  will  be  considered  by  you 
in  determining  the  probability  of  the  claim  that  there  was 
an  express  promise  on  the  part  of  Campbell,  in  effect  to 
receive  notice  for  the  Railroad  Company,  contrary  to  the 
usual  custom  of  giving  such  notice  by  a  bill  of  lading, 
or  by  written  notice,  if  you  find  that  that  was  the  custom. 


72 

You  will  also  bear  in  mind  that  the  rules  out  of  which 
the  demurrage  charge  grew,  adopted,  as  the  testimony 
shows,  in  1889,  were  known  to  the  shipping  public,  to 
shippers  and  receivers  of  grain,  at  the  City  of  Cincinnati; 
and  if  you  find  that  they  were  known  to  the  public  and 
that  they  were  known  also  to  Dawson,  Blackmore  &  Com- 
pany, then  the  charge  that  there  would  be  a  charge  for 
storage  would  be  known  to  them  from  the  time  that  the 
car  arrived. 

There  is  a  dispute  in  the  testimony  as  to  when  the 
time  began  from  which  the  charge  for  storage  or  demur- 
rage should  be  started.  The  testimony  on  the  part  of  the 
superintendent  is  that  such  charge  or  the  time  for  the 
expiration  of  which  such  charge  shall  begin,  began  at  the 
arrival  of  the  goods. 

That  is  also  testified  to  by  Campbell  and  perhaps  by 
others. 

There  is  also  testimony  tending  to  show  that  the 
forty-eight  hours  began  to  run  from  the  time  that  the  grain 
was  inspected.  You  will  have  to  determine  from  the  tes- 
timony which  of  those  statements  is  correct  and  which 
is  more  likely  to  be  correct,  from  the  position  and  standing 
and  occupation  of  the  witnesses  who  have  testified  on  the 
subject.  The  necessity  for  inspection  is  not  devolved  upon 
railroad  companies.  The  testimony  is  uncontradicted. 
The  railroad  has  nothing  to  do  with  it,  and  inspection  is 
made  by  the  Chamber  of  Commerce  for  the  benefit  of 
merchants,  for  the  facilitation  of  business  between  mer- 
chants, by  which  samples  of  the  articles  bought  and  sold 
may  be  brought  as  early  as  possible  to  the  Chamber  for 
inspection  by  those  who  deal  in  such  commodities. 

As  to  the  publication  of  lists  of  cars  received  by  rail- 
road companies,  there  is  no  requirement  to  publish  such 
lists  unless  you  find  that  the  custom  has  grown  up  be- 
tween them  in  their  dealings  with  shippers  of  grain,  to 
publish  such  lists,  and  that  under  those  circumstances  it 
would  be  their  duty  to  continue  their  publication.  But 
even  under  those  circumstances,  if  you  find  from  the  testi- 
mony in  this  case,  even  if  there  was  a  custom  generally, 
that  that  custom  did  not  apply  to  the  shipment  of  grain 
over  the  division  of  the  railroad  of  the  defendant  from 
which  this  car  came,  then  the  question  should  be  entirely 
left  out  in  your  consideration  of  the  case. 

The  jury  returned  a  verdict  for  the  defendant. 


73 


LAW  AND  EQUITY  COURT,  RICHMOND,  VA., 
MARCH,  1895. 


UNREPORTED. 


C.  W.  ANTRIM  &  SONS 
VS. 

RICHMOND,     FREDERICKSBURG    &    POTOMAC 

R.  R.  CO. 


ACTION  OF  DETINUE. 


For  61  Bbls.  Flour  @  $2.25  per  bbl $137  25 

And  80  Bbls.  Flour  @  $2.15  per  bbl 172  00 


Total    $309  25 

Damages  laid  at  $500.00. 

The  car  of  flour  arrived  at  Richmond  on  the  night 
of  March  12th,  consigned  to  order  of  David  Stott,  the 
shipper,  without  name  of  party  to  notify.  On  March  15th 
railroad  company  received  for  first  time  the  information 
as  to  whom  to  deliver  flour,  viz. :  C.  W.  Antrim  &  Sons. 

On  same  day  the  railroad  company  notified  Antrim 
&  Sons  of  the  arrival  of  the  flour.  This  day  was  Friday. 
On  Monday  the  18th,  (Saturday  being  half  holiday)  Antrim 
&  Sons  commenced  hauling  the  flour  from  the  car,  and 
after  hauling  one  load  refused  to  pay  one  dollar  car  ser- 
vice charge,  which  they  were  told  had  accrued,  where- 
upon the  company  refused  to  deliver  the  remaining  quan- 
tity of  flour.  C.  W.  Antrim  &  Sons  then  brought  an  ac- 
tion of  detinue  against  the  R.  F.  &  P.  R.  R.  C.,  in  the 
Law  and  Equity  Court,  as  above  set  forth,  to  recover  the 
flour  and  damages  for  its  detention.  The  defendant  com- 
pany put  in  a  special  plea  asserting  their  lien  upon  the 
flour  for  the  one  dollar,  car  service  charge,  and  the  Court 
allowed  the  instruction  asked  for  by  the  defendant  com- 
pany. *  This  instruction  set  forth  the  opinion  of  the  Court, 
which  is  briefly  this,  viz. :  that  where  goods  are  consigned 


74 

"to  order"  of  consignor,  or  in  such  other  way  as  does  not 
enable  the  carrier  receiving  them  to  know  who  the  con- 
signee is,  then  the  free  time  allwed  consignees  under  the 
car  service  rules  begins  to  run  from  the  same  time  as  in 
other  cases,  viz. :  the  arrival  of  the  car,  and  not  from  the 
date  of  the  receipt  of  notice  of  the  name  of  consignee. 

INSTRUCTIONS  OF  COURT  IN  CASE  OF  C.  W. 
ANTRIM  &  SONS  VS.  R.  F.  &  P.  R.  R.  CO. 

The  Court  instructs  the  jury  that,  if  they  believe  from 
the  evidence  that  the  flour  sued  for  in  this  case  was  re- 
ceived in  Richmond,  Va.,  by  the  R.  F.  &  P.  R.  R.  Co.  on 
the  night  of  12th,  or  morning  of  13th  of  March,  and  the 
company  had  no  instructions  or  knowledge  as  to  whom 
it  was  to  be  delivered  to  other  than  that  contained  in  mani- 
fest until  the  15th  of  March,  on  which  day  the  plaintiffs 
were  notified  by  the  company,  and  that  Antrim  &  Sons 
commenced  hauling  the  flour  from  the  company  on  the 
18th  day  of  March,  and  after  hauling  one  load  refused  to 
pay  one  dollar  charged  by  the  said  company  for  detention 
of  car  and  occupation  of  track,  then  the  said  company 
had  the  right  to  decline  to  deliver  flour  until  said  charge 
was  paid,  and  they  should  find  for  the  defendant  on  the 
special  plea  in  this  case  asserting  a  lien. 

Verdict  for  defendant. 


SUPERIOR  COURT  OF  TIPPECANOE    COUNTY, 
IND.,  APRIL,  1895. 


UNREPORTED. 


THE  LAFAYETTE  LUMBER  &  MFG.  CO. 

VS. 
C.  C.  C.  &  ST.  L.  RY.  CO. 


An  action  in  replevin. 

In  February,  1894,  a  car  of  lumber  consigned  to  the 
LaFayette  Lumber  &  Manufacturing  Co.  arrived  at  La- 


75 

Fayette,  Ind.,  on  the  C.  C.  C.  &  St.  L.  Ry.  This  firm 
had  repeatedly  refused  to  pay  car  service  charges.  At  the 
expiration  of  the  free  time,  the  car  being  but  partly  un- 
loaded, a  bill  for  car  service  due  was  presented,  which  they 
refused  to  pay.  They  were  then  told  they  could  not  have 
any  more  of  the  lumber  until  car  service  bill  was  paid, 
and  that  additional  charges  would  be  made  at  the  rate  of 
$1.00  per  day  until  car  was  released. 

At  the  expiration  of  two  weeks  the  lumber  company 
got  a  writ  of  replevin,  under  which  lumber  was  delivered 
and  unloaded  with  $17.00  due  for  car  service. 

The  case  went  into  court,  and  after  several  demurrers 
on  the  part  of  plaintiff  to  defendant's  answers,  which  were 
overruled,  came  to  trial. 

Plaintiffs  claimed  discrimination  against  them  in  the 
car  service  rules  which  allowed  an  additional  48  hours  in 
which  to  unload  coal  and  coke,  over  and  above  the  48 
hours  allowed  for  unloading  lumber;  and  inasmuch  as  car 
service  rules  were  not  enforced  at  certain  stations  on  the 
C.  C.  C.  &  St.  L.  Ry.  LaFayette  dealers  were  discriminated 
against  and  in  favor  of  dealers  in  the  towns  where  the  car 
service  rules  are  not  enforced. 

Defendants  denied  this  and  submitted  bill  of  lading 
covering  this  shipment  of  lumber,  which  contained  the 
clause  covering  car  service  rules. 

Judge  Everitt  decided : 

That  the  free  time  allowed  for  unloading  is  reasonable. 

That  the  charge  is  not  excessive. 

That  there  is  no  discrimination  shown  in  favor  of  coal 
dealers  and  against  lumber  dealers. 

That  rules  could  be  enforced  at  LaFayette  and  not  at 
adjoining  stations,  without  discrimination,  as  there  is  noth- 
ing in  common  between  dealers  at  such  points. 

Judgment  was  given  for  the  full  amount  of  car  ser- 
vice claimed. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE 
COMMISSIONERS  OF  THE  STATE  OF  MIS- 
SOURI. HEARD  AT  ST.  LOUIS,  APRIL  4th 
AND  5th,  1895. 

EVANS  &  HOWARD  FIRE  BRICK  COMPANY 
AND  OTHERS.  CONSTITUTING  THE  COAL 
DEALERS'  PROTECTIVE  ASSOCIATION  OF 

ST.  LOUIS. 

VS. 

THE   ST.    LOUIS    CAR    SERVICE   ASSOCIATION. 
JAS.   COWGILL,  JOS.   FLORY,  COMMISSIONERS. 


The  complaint  in  this  case  is  of  unjust  and  unreason- 
able charges  for  demurrage,  as  relating  to  coal,  lime,  and 
kindred  commodities,  delivered  upon  the  private  tracks  of 
consignees  in  the  city  of  St.  Louis,  and  praying  for  the 
restoration  of  a  former  rule  (in  force  Sept.  1st,  1892), 
which  provided  for  a  charge  of  fifty  cents  per  day  for  cars 
on  private  tracks,  instead  of  $1.00  per  car  per  day,  as  un- 
der the  rules  as  at  present  enforced;  and  that  some  rule 
should  be  provided  whereby  the  owners  of  private  tracks 
should  be  entitled  to  a  corresponding  charge  against  rail- 
roads for  leaving  cars  on  side  tracks  beyond  a  reasonable 
time,  after  same  are  unloaded. 

In  dismissing  the  complaint,  and,  refusing  the  prayer 
of  the  petitioners,  the  Commission  says:  "Hearing  was 
had  at  St.  Louis  on  the  4th  and  5th  of  April,  1895,  both 
parties  being  represented  by  counsel.  Full  investigation 
was  had.  Briefs  were  filed  by  the  attorneys  on  May  25th, 
1895.  After  a  careful  reading  of  the  testimony,  and  full 
consideration  of  the  arguments  of  attorneys,  we  are  of 
the  opinion  that  a  charge  of  one  dollar  per  day  for  the 
detention  of  cars  is  just  and  reasonable. 


77 

"Cars  detained  upon  a  private  track  are,  in  our  judg- 
ment, entitled  to  the  same  demurrage  as  like  cars  detained 
upon  any  other  track;  the  loss  by  detention  being  the  same 
in  either  case,  and  for  this  reason  we  are  of  the  opinion 
that  the  provisions  of  the  car  service  rules  are  just  and 
proper,  and  that  the  rules  as 'formerly  existing  would  not 
insure  prompt  service,  but  in  our  judgment  would  cause 
unreasonable  delay  in  unloading,  and  consequent  unneces- 
sary detention  of  cars." 


CIRCUIT   COURT   OF   JACKSON    COUNTY,   MO., 
FEBRUARY,  1896. 


UNREPORTED. 


T.  A.  GRIFFITH 

VS. 
KANSAS  CITY,  FORT  SCOTT  &  MEMPHIS  R.R.  CO. 


NO.  10,698. 


Opinion  of  E.  L.  Scarritt,  Judge,  on  plaintiff's  motion 
for  new  trial. 


By  the  agreed  statement  of  facts,  upon  which  this 
cause  was  submitted  to  the  court,  it  appears  that  defend- 
ants had  promulgated  a  rule  or  order  to  the  effect  that  the 
defendant  company  would  on  and  after  October  6,  1890, 
assess  and  collect  a  charge  of  one  dollar  per  car  per  day, 
Sundays  and  legal  holidays  excepted,  for  delay  of  cars 
and  use  of  tracks,  on  all  cars  that  should  be  delayed  in 
unloading,  loading,  or  awaiting  forwarding  instructions, 
for  more  than  a  stated  time  after  the  same  should  be  re- 
ceived, or  should  be  at  the  disposal  of  the  shipper. 


78 

The  plaintiff  had  knowledge  of  this  rule  and  order 
of  the  defendant  company,  and  knew  the  same  was  in  force 
at  the  times  herein  stated. 

On  January  10,  1891,  defendant  received  for  plaintiff 
in  Kansas  City  a  car  load  of  coal  in  one  of  its  own  cars 
that  had  arrived  on  that  day  from  Carbon  Center,  Mo. 
On  January  12th,  defendant  notified  plaintiff  of  the  ar- 
rival and  whereabouts  of  said  car  of  coal,  and  further 
notified  him  in  the  same  notice  that  "trackage  charges  will 
commence  on  this  car  January  19th,  1891,  at  7  a.  m." 
Plaintiff  did  not  call  for  said  coal  until  January  26th,  1891, 
at  which  time  defendant  demanded  seven  days  charges  at 
$1.00  per  day  for  trackage  and  storage  charges,  and  re- 
fused to  permit  plaintiff  to  unload  the  car  until  the  same 
was  paid.  Plaintiff  thereupon  instituted  a  replevin  suit, 
and  took  possession  of  the  coal. 

At  the  trial  the  court  found  the  issues  for  the  defend- 
ant, and  the  plaintiff  insists  in  his  argument  upon  a  mo- 
tion for  a  new  trial,  that  the  court  committed  error  in  so 
finding. 

There  are  two  questions  involved  in  this  case. 

1st.  Can  the  defendant  legally  charge  storage  for 
cars  used  and  occupied  by  its  patrons  beyond  a  reasonable 
time  after  the  contract  of  transportation  has  been  fulfilled  ? 

2nd.     If  so,  has  defendant  a  lien  for  such  charges? 

As  to  the  first  proposition,  there  is  no  question  as  to 
the  reasonableness  of  the  charge  made  in  this  case,  nor 
does  the  plaintiff  complain  of  the  time  allowed  him  in 
which  to  unload  his  coal. 

A  railroad  company  has  the  right  to  make  reasonable 
charges  for  the  use  of  its  cars  and  tracks,  when  the  .delay 
is  caused  by  the  failure  of  the  shipper  or  consignee  to  re- 
ceive and  unload  the  cargo,  after  due  notice  of  its  arrival. 
Of  this  proposition  there  can  be  no  doubt,  and  the  plain- 
tiff in  his  brief  admits  that  it  is  the  law. 

Has  the  defendant  a  lien  for  such  charges  ? 

This  question  the  plaintiff  earnestly  contends  should 
be  answered  in  the  negative.  And  cites  several  cases  in 
support  of  his  contention.  (Chicago  R.  R.  vs.  Jenkins, 
103  111.  588,  Railroad  vs.  Chicago,  15  Neb.  391,  Cromlien 
vs.  Harlem  Ry.,  I  Abb  (N.  Y.)  App.  472. 


79 

These  cases  are  unsatisfactory  in  their  reasoning.  I 
think  the  cases  that  hold  the  contrary  doctrine  are  more 
in  consonance  with  reason  and  better  adapted  to  the  con- 
ditions and  requirements  of  the  present  commercial  age. 
It  is  admitted  that  the  liability  of  the  railroad  company 
as  a  common  carrier  ceases  when  it  lands  the  cargo  at  its 
destination.  Its  contract  of  carriage  has  been  fulfilled.  It 
is  the  duty,  then,  of  the  shipper  to  receive  and  unload  the 
cargo.  If  he  fails  to  do  it,  he  fails  to  perform  one  of  the 
conditions  of  his  contract  of  carriage  or  transportation. 
He  constitutes  the  railroad  company  his  bailee,  and  the 
car  which  contains  the  freight,  his  storage  house.  Does 
not  the  railroad  company  then  become  his  warehouseman  ? 
If  the  railroad  company  should  unload  the  car  and  place 
the  cargo  in  their  warehouse  they  would  have  a  lien  for 
storage  charges.  This  is  not  denied.  Where  is  the  differ- 
ence, except  that  in  case  the  goods  are  retained  in  the 
car,  the  shipper  is  saved  the  expense  of  unloading  and 
removing  them  to  a  warehouse? 

The  shipper,  by  his  failure  or  neglect  to  receive  and 
unload  the  cargo,  compels  the  railroad  company  to  retain, 
house  and  care  for  his  goods  beyond  the  time,  when  by 
the  terms  of  the  contract  of  carriage  they  are  bound  to 
do  so.  For  this  extra  service  the  railroad  company  is  en- 
titled to  extra  compensation.  If  the  car  is  unloaded  and 
the  goods  placed  in  a  warehouse  the  company  has  an  un- 
doubted lien  for  such  extra  compensation.  Now  under 
the  rule  of  the  company,  of  which  the  shipper  has  notice, 
the  car  is  made  the  storage  hou'se  for  the  goods  after  a 
reasonable  time  has  been  given  the  shipper  to  unload.  Is 
not  this  the  rule  and  the  knowledge  thereof  on  the  part 
of  the  shipper  equivalent  to  an  agreement  on  the  part  of 
both  parties  that  the  goods  shall  be  considered  as  "stored" 
in  the  car,  the  same  as  if  in  a  warehouse,  and  if  so,  does 
not  the  lien  for  charges  follow  as  a  matter  of  law  ? 

There  is  another  reason  why  this  rule  should  be  main- 
tained. Railroad  companies  are  quasi-public  corporations. 
The  innumerable  ramifications  of  the  combined  railroad 
systems  extend  to  every  nook  and  corner  of  this  country, 
and  the  loaded  cars  of  almost  every  individual  corpora- 
tion are  found  at  one  time  or  another,  upon  the  switches, 
sidetracks  and  unloading  tracks  of  almost  every  city  of 
any  commercial  importance  on  the  continent.  They  are 


8o 

transferred  from  one  carrier  to  another  until  their  final 
destination  is  reached.  This  is  in  the  interest  of  com- 
merce. It  facilitates  and  lessens  the  expense  of  the  trans- 
portation of  property. 

A  railroad  company  cannot  meet  the  ordinary  de- 
mands for  transportation  if  its  cars  can  be  tied  up  indefi- 
nitely at  the  pleasure  of  an  individual  shipper..  The  indi- 
vidual shipper  and  the  company  are  not  the  only  ones  in- 
terested. The  public  convenience  and  trade  would  be  ser- 
iously interfered  with  if  each  individual  shipper  were  per- 
mitted to  retain  the  use  of  cars  and  tracks  for  storage  pur- 
poses beyond  a  reasonable  time.  "Car  famines"  and  con- 
sequent congestion  of  traffic  would  inevitably  result  from 
such  a  rule. 

The  increasing  complexity  and  growing  complications 
of  railroad  traffic  have  induced  railroad  companies  in  dif- 
ferent places  to  organize  what  are  known  as  Car  Service 
Associations  for  the  purpose  of  having  an  authorized  agent 
to  look  after  fugitive  cars  and  others  of  every  description, 
and  to  see  that  they  are  seasonably  unloaded  and  returned 
to  the  ordinary  channels  of  trade.  This,  together  with 
the  announcement  of  the  rule  that  the  companies  shall 
have  a  lien  for  charges  upon  goods  stored  in  cars,  will,  I 
think,  have  a  salutary  effect  upon  the  car  service  in  this 
State.' 

I  submit  the  foregoing  as  some  of  the  salient  reasons 
for  the  conclusion  I  have  reached,  in  this  case.  The  au- 
thorities cited  below,  in  my  opinion,  fully  support  the  con- 
clusion of  the  court  upon  legal  theories.  I  am  pleased  to 
follow  the  lead  of  some  of  our  sister  States  which  have  al- 
ready announced  the  same  doctrine.  (Gashweiler  vs.  Ry. 
Co.  83  Mo.  112;  Gregg  vs.  I.  C.  Ry  Co.  147  111.  550  S.  C, 
61  A.  &  E.  R.  R.  Cs.  208;  Miller  vs.  Mansfield,  112  Mass. 
260;  Miller  vs.  Ga.  Pac.  Ry.  &  B.  Co.,  88  Ga.  563;  S.  C. 
50  A.  &  E.  R.  R.  Cs.  79  and  15  S.  E.  Rep.  316;  Hutch,  on 
Carriers,  Sec.  378;  Ry.  Co.  vs.  Filder,  46  Ga.  433;  Nor- 
folk &  W.  R.  R.  Co.  vs.  Adams,  56  A.  &  E.  R.  R.  Cas. 
330.  On  proposition  as  to  lien,  28  Amer.  &  Eng.  Enc.  of 
Law  p.  663,  and  authorities  cited  under  note  4;  Alden 
vs.  Carver,  13  la.  253;. Barker  vs.  Brown,  138  Mass.  340; 
Story  on  Bailments,  (9th  Ed.)  Sec.  453  a. ;  Steinman  vs. 
Wilkins,  42  Amer.  Die.  254  and  note  at  page  287;  Schmidt 
vs.  Blood,  24  Amer.  Die.  143  and  note  at  page  145:  Ken-- 


Si 

tucky  Wagon  Co.  vs.  R.  R.  Co.,  17  S.  W.  Rep.  page  595; 
Rev.  St.  of  Mo.,  1889,  Sec.  6806. 

The  motion  for  a  new  trial  is  overruled. 
Robert  Adams,  Attorney  for  Plaintiff. 
I.  P.  Dana,  Attorney  for  Defendant. 


CIRCUIT    COURT    OF     COLES     COUNTY,    ILL., 
APRIL,  1896. 

UNREPORTED. 


FULLER  &  FULLER 

VS. 

CLEVELAND,     CINCINNATI,     CHICAGO     &     ST. 
LOUIS  RAILWAY  CO. 


The  following  opinion  by  Judge  F.  M.  Wright,  ren- 
dered April  21st,  1896,  sustains  the  right  of  railroad  com- 
panies to  hold  freight  for  car  service  charges  after  allow- 
ing forty-eight  (48)  hours  free  for  unloading. 

Fuller  &  Fuller,  lumber  and  coal  dealers  of  Charles- 
ton, Illinois,  received  in  July,  1894,  and  January,  1895, 
ears  58171  C.  C.  C.  &  St.  L.  and  18460  C.  C.  C  &  St.  L., 
respectively.  These  cars  were  placed  in  the  usual  manner 
for  unloading  and  at  the  expiration  of  forty-eight  (48) 
hours  after  arrival,  a  bill  for  $1.00  each  car  service  was 
presented  to  consignee,  who  refused  payment.  In  accord- 
ance with  the  rules  of  the  Illinois  Car  Service  Association 
of  which  defendant  company  were  members,  the  cars  were 
then  padlocked  by  the  railroad  company's  agent  and  held 
until  five  ($5.00)  and  sixteen  ($16.00)  dollars  car  service 
respectively  accrued  thereon,  whereupon  consignees  re- 
plevined  the  property. 


82 

The  two  cases  were  by  consent  consolidated  and  a 
jury  waived. 

F.  K.  Dunn,  attorney  for  plaintiffs. 

Geo.  F.  McNulty  and  Neal  &  Wiley,  attorneys  for  de- 
fendant. 

Judgment  for  defendant. 


WRIGHT,  J.— The  facts  in  these  cases  are  that  the 
defendant  had  transported  two  car  loads  of  hard  coal,  one 
of  them  consigned  to  the  plaintiffs,  and  the  other  to  the 
Coles  County  Coal  Company,  and  afterwards  by  the  Coles 
County  Coal  Company  transferred  to  the  plaintiffs  in 
Charleston,  Illinois. 

The  defendant  company  had  adopted  a  rule  at  this 
station,  that  after  actual  notice  to  the  consignee,  or  his 
assignee,  cars  should  be  unloaded  within  forty-eight  hours 
after  such  notice,  and  upon  failure  to  do  so  the  owner  of 
the  property  should  be  subject  to  a  charge  of  one  dollar 
per  day  for  car  service. 

Plaintiffs  were  so  notified,  and  failed  to  comply  with 
such  notice,  and  the  defendant  thereupon  refused  to  per- 
mit them  to  unload  the  cars  unless  such  charges  were  paid, 
and  thereupon  plaintiffs  replevined  the  cargo. 

The  question  arising  under  the  argument  in  these 
cases  is  whether  a  railroad  company  has  a  lien  upon  such 
freight,  as  is  involved  in  this  controversy,  for  a  reason- 
able charge  after  an  unreasonable  delay  in  unloading  the 
cargo. 

It  is  not  contended  by  counsel  for  plaintiff  that  the 
railroad  company  has  not  a  right  to  make  a  reasonable 
charge  for  such  service,  but  it  is  denied  that  the  company 
has  a  lien  upon  the  cargo  for  such  charges. 

Were  it  not  for  the  decision  of  the  Supreme  Court  of 
this  State  in  the  Jenkins  case,  reported  in  103  Illinois  Re- 
ports, the  court  would  have  little  difficulty  in  reaching  a 
conclusion. 

However,  the  court  has  arrived  at  a  conclusion  which 
at  least  is  satisfactory  to  itself.  The  common  law  rule  in 
respect  to  liens  is  a  familiar  one,  and  of  wide  and  varied 
application. 


It  is  a  familiar  principle  of  common  law  that  anyone 
who  has  bestowed  any  particular  service  or  care  upon  any 
article  of  property  which  has  been  confided  to  his  posses- 
sion for  such  purpose,  has  a  lien  upon  it  for  any  reason- 
able charge  in  respect  to  such  service  or  care.  It  is  diffi- 
cult to  see  why  the  facts  in  the  present  case  do  not  call 
for  the  application  of  this  familiar  principle.  It  is  difficult 
to  imagine  why  a  railroad  company  having  bestowed  a 
care  upon  property  which  it  is  conceded  to  be  entitled  to 
a  reasonable  charge  in  that  respect  should  be  excepted 
from  the  general  rule  which  entitles  parties  performing 
such  services  to  a  lien  upon  the  property. 

All,  in  my  judgment,  that  the  Jenkins  case  determines 
is,  that  the  consignee  is  not  bound  by  the  rules  of  the 
company  unless  he  assents  or  agrees  thereto.  This  prin- 
ciple is  generally  true,  not  only  in  cases  like  the  present, 
but  in  all  other  cases. 

It  is  not  denied  that  the  shipper  is  entitled  to  a  rea- 
sonable time  to  unload  the  cars  before  he  is  subject  to  any 
charges. 

The  statute  in  respect  to  grain  provides  that  twenty- 
four  hours  is  a  reasonable  time.  In  the  cases  at  bar  the 
rule  gives  forty-eight  hours.  It  is  difficult  to  see  why 
twenty-four  hours  in  the  one  case  should  be  a  reasonable 
time  and  forty-eight  hours  in  the  other  case  should  be 
unreasonable.  Therefore,  it  can  hardly  be  contended  that 
forty-eight  hours  is  an  unreasonable  time  under  all  the 
facts  and  circumstances  in  the  case  in  view  of  the  express 
legislative  provision  in  respect  to  freight  which  consists 
of  grain. 

The  Legislature  has  seen  proper  to  pass  another  stat- 
ute in  this  State,  which,  while  it  is  not  upon  the  express 
subject  involved  in  these  cases,  seems  to  me  to  have  a  very 
pertinent  application,  and  to  a  certain  extent  will  control 
the  decision  of  this  case.  It  is  the  statute  relating  to  un- 
claimed propery,  Chap.  141  of  the  Revised  Statutes.  The 
title  of  that  Act  is:  "An  Act  to  provide  for  the  sale  of 
personal  property  by  common  carriers,  warehousemen, 
innkeepers,  and  by  others  having  liens  thereon."  The  first 
section  of  it,  in  part,  reads  as  follows :  "That  whenever 
any  trunk,  carpet  bag,  valise,  bundle,  package  or  article 
of  property  transported  or  coming  into  the  possession  of 
any  railroad  or  express  company,  or  any  other  common 


84 

carrier,  inkeeper  or  warehouseman  or  private  warehouse- 
keeper,  in  -the  course  of  its,  or  his  business  as  common 
carrier,  innkeeper,  warehouseman  or  private  warehouse- 
keeper  shall  remain  unclaimed  and  the  legal  charges  there- 
on unpaid  during  the  space  of  six  months  after  its  arrival 
at  the  point  to  which  it  shall  have  been  directed,  and  the 
owner  or  person  to  whom  the  same  is  consigned  cannot 
be  found,  upon  diligent  inquiry,  or  being  found  and  noti- 
fied of  the  arrival  of  such  article,  shall  refuse  or  neglect 
to  receive  the  same  and  pay  the  legal  charges  thereon  for 
the  space  of  three  months,  it  shall  be  lawful  for  such  com- 
mon carrier,  warehouseman,  innkeeper  or  private  ware- 
housekeeper  to  sell  such  article  at  public  auction,  after 
giving  such  notice  as  prescribed  by  the  statute." 

Now,  it  seems  to  me  that  this  statute  plainly  recog- 
nizes that  railroad  companies  have  a  lien  upon  all  personal 
property  transported  by  them,  not  only  for  freights, 
though  that  is  not  the  word  used  by  this  statute,  but  for 
the  reasonable  charges  thereon. 

It  is  conceded  in  these  cases  that  the  railroad  com- 
pany has  the  right  to  charge  for  car  service  after  an  un- 
reasonable delay  on  the  part  of  the  consignee  in  unload- 
ing the  freight.  If  that  be  true,  then  that  becomes  a  legal 
charge,  to  the  same  extent  that  the  freight  rate  is  a  legal 
charge,  and  this  statute,  by  its  title,  and  by  its  plain  provi- 
sions, recognizes  that  lien  and  subjects  the  property,  under 
certain  conditions,  and  after  the  lapse  of  a  certain  time, 
to  be  sold  to  pay  those  legal  charges. 

This  view  of  the  case  seems  to  the  court  to  be  more 
consistent  with  justice  between  man  and  man  than  the 
other  view  of  the  case  contended  for,  which  is,  that  the 
railroad  company  should  sue  the  party  for  these  charges. 

To  recognize  a  lien  existing  in  favor  of  a  common 
carrier  is  promotive  of  justice.  It  avoids  litigation,  and 
enables  parties  to  settle  these  small  charges  without  con- 
troversy. 

The  principal  object  of  the  rule  of  the  company  doubt- 
less is  not  to  secure  the  small  charges  made  for  the  use 
of  the  cars,  but  to  secure  to  themselves  and  to  the  public 
the  use  of  the  cars. 

If  the  courts  refused  to  recognize  liens  under  the  facts 
and  circumstances  shown  in  the  evidence  here,  it  would  not 


85 

only  be  a  detriment  to  the  railroad  company,  but  it  would 
be  disastrous  to  the  public  interests  in  view  of  the  fact  that 
it  is  necessary  both  to  the  railroad  company  and  to  the 
public  that  the  railroad  companies  at  all  times  have  the 
use  of  their  cars,  in  order  that  the  public  business  may  be 
properly  transacted. 

The  finding  and  judgment,  therefore,  will  be  for  the 
defendant. 


CIRCUIT  COURT  OF  ST.  LOUIS,  MO.,  JUNE,  1896. 
NO.  98876. 


UNREPORTED. 


THE  WABASH  R.  R.  CO. 

VS. 
BERRY-HORN  COAL  CO. 


This  was  an  action  by  the  Wabash  Railroad  Company 
to  recover  compensation  for  the  detention  and  use  of  cer- 
tain cars  by  the  defendant,  to  whom  the  cars  loaded  with 
coal  were  upon  consignment  delivered  by  the  plaintiff  upon 
defendant's  private  track  at  its  coal  yard  in  St.  Louis. 

The  coal  was  shipped  to  be  unloaded  by  the  defend- 
ant, who  was  allowed  under  plaintiff's  rules  as  a  reasonable 
time  for  unloading,  three  days  or  72  hours  on  soft  coal, 
two  days,  or  48  hours  on  hard  coal ;  counting  from  7  a.  m. 
of  the  next  day  following  the  delivery  of  the  cars  to  the 
defendant. 

It  was  claimed  by  the  plaintiff  that  it  was  the  defend- 
ant's duty  to  unload  the  said  cars  within  a  reasonable  time 
after  delivery.  That  the  time  allowed  by  the  car  service 
rules  as  aforesaid  was  a  reasonable  time,  and  that  the  de- 
fendant having  failed  to  unload  said  cars  within  the  said 
time  thereby  became  and  was  liable  to  compensate  plain- 


86 

tiff  for  the  use  and  detention  thereof  at  the  rate  of  $1.00 
per  car  per  day. 

The  defenses  set  up  by  the  answer  were : 

First — That  the  charge  was  illegal  and  that  it  was 
unreasonable. 

Second — That  as  to  forty-eight  cars  it  appeared  that 
they  were  owned  by  other  railways  than  the  plaintiff  com- 
pany, and  that  as  to  these  the  plaintiff  company  was  not 
entitled  to  recover  because  of  the  ownership  by  foreign 
companies. 

Third — That  the  plaintiff  was  not  entitled  to  recover 
because  the  character  of  the  service  rendered  to  the  de- 
fendant by  the  plaintiff  was  bad,  that  they  frequently  de- 
livered cars  "bunched,"  and  thereby  damaged  the  defend- 
ant in  a  greater  amount  than  the  amount  sued  for  by  the 
plaintiff. 

Fourth — That  the  plaintiff  could  not  recover  because 
of  the  peculiar  properties  of  the  soft  coal,  which  it  was 
shown  could  not  be  unloaded  except  from  the  cars  to  the 
wagons  without  disintegration  and  great  loss  to  the  de- 
fendant, which  it  was  claimed  compelled  the  defendant  to 
use  the  cars  as  warehouses,  particularly  when  the  cars 
were  delivered  "bunched." 

Fifth — That  the  plaintiff  could  not  recover  because 
the  coal  was  delivered  upon  defendant's  private  track,  of 
which  they  were  the  owners ;  that  to  charge  them  as  much 
as  was  charged  others  upon  tracks  owned  by  the  company 

was  unlawful  discrimination  as  against  the  defendant. 

• 

The  action  was  for  $138.00  demurrage  charges,  and 
was  tried  before  the  Court  sitting  as  a  jury. 

The  Court  held :     Honorable  John  F.  Dillon,  Judge : 

That  a  common  carrier  has  a  right  to  impose  a  reason- 
able charge  for  the  use  and  detention  of  its  cars  delivered 
to  the  consignee,  and  to  be  unloaded  by  him,  when  de- 
tained by  the  consignee,  beyond  a  reasonable  time  for  un- 
loading. 

That  the  charge  of  $1.00  per  day  for  each  car  so  de- 
tained was  a  reasonable  and  legal  charge,  and  that  the 


87 

time  of  72  hours  allowed  for  unloading  soft  coal  and  48 
hours  allowed  for  unloading  hard  coal  was  a  reasonable 
time  for  the  unloading  of  the  cars. 

That  as  for  the  forty-eight  cars  belonging  to  other 
railroads  and  originally  consigned  through  them,  the  plain- 
tiff was  entitled,  as  special  owner  or  bailee  thereof,  to  col- 
lect the  demurrage  charges  thereon  as  upon  its  own  cars. 

That  the  question  of  good  or  bad  service  of  the  plain- 
tiff in  delivering  cars  to  the  defendant  could  not  be  con- 
sidered in  determining  the  legality  or  reasonableness  of 
the  demurrage  charge  sought  to  be  enforced;  nor  could 
the  quality  of  the  coal  or  alleged  necessity  of  handling  it 
directly  from  the  cars  to  the  wagons  be  considered. 

That  the  charge  being  legal,  reasonable  and  just, 
plaintiff  was  entitled  to  recover  the  sum  of  $138.00  sued 
for. 


CIRCUIT   COURT   OF   WAYNE   COUNTY,   MICH. 
JUNE,  1896. 


UNREPORTED. 


WILLIAM  A.  M'EACHRAN  &  CO. 

VS. 
GRAND  TRUNK  RY.  CO. 


An  action  at  law  by  William  A.  McEachran  &  Com- 
pany, dealers  in  wood  and  coal,  against  the  Grand  Trunk 
Railway,  for  $500  damages  for  withholding  three  cars  of 
cord  wood  for  car  service  charges,  was  decided  in  favor 
of  the  defendant  railway  company  by  Judge  W.  M.  Lilli- 
bridge,  in  the  Circuit  Court  for  the  County  of  Wayne,  at 
Detroit,  Michigan,  June  19,  1896.  Messrs.  Riggs  &  Leh- 
man appeared  for  plaintiffs,  and  Edwin  F.  Conely,  counsel 
for  Car  Service  Association,  appeared  for  the  Railway 
Company. 

The  history  of  the  case  is  as  follows : 


88 

Three  cars  of  wood  were  received  at  Detroit  station 
in  the  latter  part  of  January,  1895,  and  the  consignees 
were  notified  of  arrival  in  the  usual  way.  McEachran 
called  at  freight  office,  and,  having  ascertained  the  amount 
of  freight  charges,  left  directions  to  deliver  cars  at  a  cer- 
tain wood  yard  having  private  track  delivery,  and  promised 
to  send  check  for  the  freight.  Plaintiffs  were  notified  by 
telephone  on  two  or  three  occasions,  during  the  running 
of  free  time,  that  the  check  had  not  come  to  hand  and 
promised  to  investigate  the  matter.  Defendant  did  not 
receive  check  for  freight  charges  until  after  one  day's  car 
rental  had  accrued,  under  the  rules  of  the  Car  Service  As- 
sociation. Plaintiffs  were  then  notified  that  car  rental  had 
thus  accrued,  and  that  cars  would  not  be  delivered  until 
car  rental  was  paid.  Plaintiffs  claim  that  they  had  left 
order  for  delivery,  and  had  deposited  check  in  the  United 
States  mail  within  proper  time,  and  that  they  would  do 
nothing  further.  Some  correspondence  ensued  in  which, 
on  the  one  hand,  defendant  reiterated  its  demand  for  car 
rental  and  refusal  to  deliver  unless  paid,  and,  on  the  other 
hand,  plaintiffs  refused  to  pay  car  rental  and  said  that 
they  would  hold  defendants  liable  for  the  wood  unless  it 
was  delivered  as  directed.  Defendant  finally  notified 
plaintiffs  that  unless  the  car  rental  was  paid  the  wood 
would  be  stored  with  a  certain  storage  company  to  await 
release  J>y  paying  car  rental,  and  additional  storage 
charges.  Car  rental  was  not  paid  and  wood  was  stored. 
Plaintiff  brought  suit. 

On  the  trial  the  foregoing  appeared  with  evidence 
showing  Car  Service  Rules  and  other  material  facts. 

Judge  Lillibridge  ruled  that  under  the  testimony  the 
Car  Service  Rules  were  valid  and  reasonable,  and  that  un- 
less there  was  something  to  take  the  case  out  of  the  opera- 
tion of  the  rules,  plaintiff  could  not  recover.  Plaintiff's 
counsel  then  contended  that  the  defendant  company  had 
waived  pre-payment  of  freight,  but,  on  this  point,  Judge 
Lillibridge  ruled  that  though  possibly  there  was  enough 
evidence  for  the  consideration  of  the  jury  on  the  waiver, 
there  was  no  testimony  tending  to  show  that  the  partv 
with  whom  McEachran  had  the  conversation  on  which 
plaintiff's  claim  of  waiver  was  based,  had  any  authority  to 
release  the  company's  rights  in  the  matter.  Accordingly, 
Judge  Lillibridge  directed  the  jury  to  render  a  verdict  in 
favor  of  the  defendant  company. 


89 


SUPREME   COURT   OF   THE    DISTRICT   OF    CO- 
LUMBIA, WASHINGTON,  D.  C,  JUNE,  1897. 


Law  No.  31524. 


AUSTIN  HERR 

VS. 
BALTIMORE  &  POTOMAC  R.  R.  CO. 


The  facts  of  the  above  entitled  cause  are  as  follows: 

The  plaintiff,  Austin  Herr,  who  was  engaged  in  build- 
ing a  house  and  improving  a  farm  at  Springfield,  Md., 
near  Bowie  Station,  on  the  Baltimore  and  Potomac  Rail- 
road, in  January,  1891,  purchased  from  Thomas  W.  Smith, 
a  lumber  dealer  of  Washington,  four  car-loads  of  lumber 
and  from  one  Caton  three  or  four  car-loads  of  manure  to 
be  forwarded  to  him  at  Springfield.  These  consignments 
were  received  at  Springfield  about  the  12th  of  January, 
1891.  Two  cars  of  lumber  and  two  cars  of  manure,  re- 
maining loaded  beyond  the  forty-eight  hours  prescribed 
by  the  Car  Service  regulations,  the  agent  of  the  defendant 
company  presented  Herr  with  a  bill  for  demurrage  on 
the  four  cars  at  $1  a  day  per  car,  which  Herr  refused  to 
pay,  assigning  as  his  excuse  for  failing  to  unload  the  cars 
that  the  roads  were  not  in  a  condition  for  him  to  haul. 
On  Herr  persisting  in  his  refusal  to  recognize  the  right 
of  the  company  to  charge  demurrage,  the  cars  containing 
the  lumber  were  locked  up  and  delivery  withheld,  and 
after  storing  the  required  period  the  lumber  was  sold  in 
pursuance  of  the  provisions  of  the  Maryland  act  authoriz- 
ing the  sale  of  freight,  etc,  for  unpaid  charges.  (Poe's 
Code,  Md.  Gen.  Laws,  sec.  180.) 

Before  the  goods  were  sold  by  the  railroad  company, 
Herr  sued  the  defendant  in  the  Supreme  Court  of  the 
District  of  Columbia,  in  an  action  of  trover,  to  recover 
$5,000  damages  for  the  two  car-loads  of  lumber  and  two 
car-loads  of  manure  which  he  claimed  had  been  -unlawfully 
converted  by  said  defendant. 


90 

The  cause  came  on  for  trial,  June  22,  1897,  before 
Mr.  Justice  C.  C.  Cole  and  a  jury,  and  lasted  three  days. 
Chas.  C.  Tucker,  Esq.,  appeared  for  the  plaintiff,  and 
Messrs.  Enoch  Totten  and  J.  S.  Flannery  represented  the 
defendant  company.  The  defendant  proved  by  the  testi- 
mony of  a  number  of  witnesses  the  necessity  for  making 
the  regulations  and  that  the  charge  of  $1  a  day  for  de- 
murrage was  reasonable.  Messrs.  Smith  and  Caton,  the 
consignors  from  whom  Herr  purchased,  admitted  that  they 
had  received  copies  of  the  regulations  concerning  demur- 
rage shortly  after  the  organization  of  the  Car  Service  As- 
sociation, in  August,  1890;  but  Herr  denied  all  knowledge 
of  said  regulations.  It  was  also  shown  that  Smith  and 
Caton  prepaid  the  freight  and  took  from  the  railroad  com- 
pany shipping  receipts,  which  they  retained.  Among  the 
conditions  printed  on  the  back  of  these  shipping  receipts 
(copies  of  which  were  produced)  were  the  following : 

"The  carrier  shall  have  a  lien  upon  the  goods  for  all 
freight  advances,  back  charges,  demurrage  and  claims  in 
the  nature  of  demurrage,  expense  of  storage,  necessary 
cooperage  or  baling." 

"The  carriage  of  said  merchandise  shall  be  complete 
and  freight  charges  earned  when  it  has  been  held  a  rea- 
sonable time  without  notice,  say  twelve  working  hours, 
subject  to  the  owner's  order-  at  the  station  or  place  where 
it  is  above  agreed  to  be  delivered,  and  if  not  then  removed 
by  the  person  or  party  entitled  to  receive  the  same,  it  may 
be  removed  and  stored,  or  kept  in  the  car,  station  or  place 
of  delivery  of  the  carrier,  or  otherwise  at  the  sole  risk  and 
further  expense  of  such  person  or  party  without  notice, 
except  that  when  merchandise  is  destined  to  or  from  the 
several  "way  stations"  and  platforms  where  station  build- 
ings have  not  been  established  by  the  carrier,  or  where 
there  are  no  regularly  appointed  freight  agents,  it  shall 
be  at  the  risk  of  the  owner  until  loaded  into  the  cars  and 
when  unloaded  therefrom,  and  when  received  from  or  de- 
livered on  private  turnouts,  it  shall  be  at  the  owner's  risk 
until  cars  are  attached  to  and  after  they  are  detached  from 
the  trains." 

At  the  close  of  all  the  evidence,  counsel  for  the  de- 
fendant asked  the  court  to 'instruct  the  jury  to  return  a 
verdict  for  the  defendant,  upon  the  following  grounds : 


1.  That  the  defendant  had  a  lien  upon  the  goods  for 
storage  or  demurrage  (1)  by  contract  and  (2)  by  the  com- 
mon law,  and  having  such  lien  the  plaintiff  was  not  entitled 
to  the  possession  of  the  goods  until  the  charges  were  paid, 
and,  therefore,  could  not  maintain  an  action  of  trover  be- 
cause to  maintain  such  action  he  must  have  not  only  the 
right  of  property  in  the  goods,  but  the  right  to  the  im- 
mediate possession  of  them. 

Citing : 

Miller  &  Co.  vs.  Georgia  R.  R.  Co.,  88  Ga.,  563; 

50  A.  &  E.  R.  R.  Cas.,  80  and  notes. 
Norfolk  &  Western  -R.  R.  Co.  vs.  Adams,  Clement 

&  Co.,  90  Va.,  393. 
Kentucky  Wagon  Mfg.  Co.  vs.  Ohio  &  Miss.  Ry. 

Co.,  97  Ky.,  — :  50  A.  &  E.  R.  R.  Cas.,  supra. 
Story  on  Bailments  (9th  Ed.)  Sec.  453  A. 
Jones  on  Liens,  (2nd  Ed.),  Sees.  284  and  967-977. 
Miller  vs.  Mansfield,  112  Mass.,  260. 
Barker  vs.  Brown,  138  Mass.,  340. 

Contra,  cited  by  plaintiff's  counsel: 

Chicago,  etc.,  R.  R.  vs.  Jenkins,  103  111.,  588. 
Burlington,  etc.,  R.  R.  vs.  Chicago  Lumber  Co.,  15 

Neb.,  391. 

Cromeline  vs.  R.  R.  Co.,  4  Keyes  (N.  Y.),  90. 
Falconburg  vs.  Clark,  11  R.  L,  278. 

2.  That  the  plaintiff  was  bound  by  the  conditions  of 
the  shipping  receipt  or  contract  of  shipment  made  with 
the  defendant  company  by  Smith  and  Caton,  the  consig- 
nors, (1)  because  they  were  the  owners  of  the  goods  at 
the  time  of  shipment,  and  (2)  because  they  were  the  plain- 
tiffs' agents  in  making  the  shipment. 

Citing : 

York  vs.  Central  R.  R.,  3  Wall  (U.  S.),  107. 

Bank  of  Kentucky  vs.  Adams  Express  Co.,  93  U. 

S.,  174. 

Nelson  vs.  R.  R.  Co.,  48  N.  Y.,  498. 
Shelton  vs.  Merch.  Dispatch  Co.,  59  N.  Y.,  258. 
Squire  vs.  R.  R.  Co.,  98  Mass.,  239. 
Barker  vs.  Brown,  138  Mass.,  340. 


92 

The  court  granted  the  motion  of  the  defendant's  coun- 
sel and  directed  the  jury  to  render  a  verdict  for  the  de- 
fendant, holding  that  the  regulation  was  valid  and  that 
the  plaintiff  was  bound  by  the  conditions  of  the  shipping 
receipts  taken  by  Caton  and  Smith,  the  consignors. 

The  opinion  of  the  Court  is  as  follows : 
Gentlemen:  I  have  no  doubt  in  the  world  about  the 
validity  of  this  regulation  of  the  railroad  company,  nor 
have  I  any  doubt  that  it  becomes  a  part  of  the  contract 
with  any  shipper  who  makes  a  contract  to  have  goods 
shipped,  knowing  of  its  existence. 

That  being  so,  there  is  no  question  but  this  contract 
is  binding  upon  Smith  and  Caton,  the  shippers ;  and  the 
only  question  about  which  I  have  had  any  difficulty  at  all 
during  the  trial  is  the  one  of  whether  it  is  also,  as  matter 
of  law  for  the  Court  to  determine,  binding  upon  the  plain- 
tiff in  this  case.  If  it  is  binding  upon  the  plaintiff  as  mat- 
ter of  law  for  the  Court  to  determine,  it  must  be  upon  the 
theory  that  the  contracts  made  by  Smith  and  Caton  are 
binding  upon  the  plaintiff  because  he  did  not  make  them, 
and  he  testifies  that  he  had  no  knowledge  of  this  regula- 
tion or  matter  that  is  relied  upon  here.  And,  therefore, 
that  would  be  a  question  of  fact  for  the  jury,  unless,  as 
matter  of  law,  the  contract  of  these  shippers  is  his  contract, 
binding  upon  him. 

I  say  "his  contract."  It  might  be  that  the  contract 
might  be  binding  upon  him  although  the  shippers  were  not 
his  agents,  and  it  might  be  upon  this  theory,  which  I  sug- 
gested to  Mr.  Tucker  during  the  argument :  Smith  was  in 
possession  of  these  goods.  The  railroad  company  has  the 
right  to  treat  as  the  owner  whoever  is  in  possession.  They 
must  deal  with  the  party  in  possession.  They  cannot  re- 
ceive from  anybody  but  the  party  in  possession.  And  the 
title  in  these  goods  did  not  vest  in  the  plaintiff  in  this  case 
until  the  act  of  delivery  to  the  railroad  company  was  com- 
plete, until  the  railroad  company  had  received  the  goods 
from  Smith,  or  the  shippers,  and  given  their  bill  of  lading, 
or  receipt,  or  whatever  they  did  give,  so  that  the  shippers 
would  be  able  to  charge  them  with  the  goods.  The  goods 
remained  the  property  of  the  shippers,  Smith  and  Caton, 
until  that  time.  So  that  when  the  railroad  company  re- 
ceived this  property  from  Smith  and  Caton,  it  belonged  to 
Smith  and  Caton,  and  only  became  the  property  of  the 


93 

consignee  when  it  was  completely  in  the  care  of  the  rail- 
road company  for  transportation. 

Therefore  it  is  probably  true  that,  strictly  as  matter 
of  law,  the  railroad  company  received  this  property  from 
the  owner,  and  made  its  contract  with  the  owner. 

The  York  Company  case,  in  3rd  Wallace,  uses  the 
language,  "contracting  with  the  owner;"  and  I  have  looked 
up  the  cases  referred  to,  and  find  that  in  every  case  where 
the  Supreme  Court  speaks  of  the  contract  of  carriage,  it 
speaks  of  it  as  between  the  owner  and  the  carrier. 

Now,  if  Smith  was  the  owner  of  these  goods  when  he 
made  that  contract  with  the  railroad  company,  of  course 
he  had  the  power  to  create  a  lien  on  them  until  the  title 
actually  passed  out  of  him  and  into  the  plaintiff  in  this 
case.  The  act  by  which  he  created  the  lien,  and  the  act 
that  vested  the  title  in  the  consignee,  were  simultaneous; 
and  according  to  general  principles  (I  have  not  any  de- 
cided case  upon  that  point)  I  think  that  must  be  so. 

I  think  the  principle  must  be  that  where  a  man  orders 
goods  as  the  plaintiff  did  in  this  case,  he  does  not  become 
the  owner  of  the  goods  upon  giving  the  order.  Unless 
there  is  something  to  the  contrary  in  the  contract  between 
him  and  the  party  from  whom  he  orders,  the  title  vests  in 
him  when  the  property  is  delivered  to  the  carrier  to  be  car- 
ried; and  in  a  case  of  that  kind,  it  seems  to  me  that  the 
owner  of  the  goods  who  delivers  them  to  a  carrier  in  pur- 
suance of  an  executory  contract  to  sell  them  to  the  con- 
signee, must  of  necessity  have  the  power  to  make  any  con- 
tract in  relation  to  the  carriage  of  the  goods  that  it  would 
be  reasonable  and  proper  to  make. 

Now,  if  I  am  right  about  that,  Smith  created  this  lien 
upon  this  lumber,  regardless  of  the  question  whether  he 
was  acting  as  agent  of  the  consignee  or  not. 

I  cannot  distinguish  the  case  of  the  York  Company, 
in  3rd  Wallace,  from  this.  There  the  people  in  St.  Louis 
I  think,  who  were  cotton  brokers,  had  cotton  in  their  pos- 
session for  sale,  and  agreed  to  sell  it  to  this  Eastern  com- 
pany, and,  in  pursuance  of  that  executory  contract  to  sell, 
delivered  this  property  to  the  railroad  company  in  St. 
Louis,  and  made  this  contract.  The  Supreme  Court  holds 
that  that  contract  is  binding  upon  the  consignee,  although 
that  contract  cut  down  the  common-law  liabilitv  of  a  com- 


94 

mon  carrier,  something  they  had  no  express  authority  to 
do;  but  it  could  only  be  held  upon  the  ground  that  the 
consignor  was  the  general  agent  of  the  consignee  for  the 
purpose  of  making  any  proper  contract  of  carriage. 

There  is  a  later  case  in  93  U.  S.,  174,  the  case  of  the 
Bank  of  Kentucky  vs.  The  Adams  Express  Company, 
where  the  question  was  whether  the  bill  of  lading  taken  by 
the  Louisiana  Bank  was  binding  upon  the  Kentucky  Bank. 
In  that  case  a  certain  instruction  which  I  will  read  was 
given  by  the  judge  who  tried  the  case;  and  although  the 
case  was  reversed  upon  another  point,  the  Court  refer  to 
that  particular  instruction,  and  say  that  they  approve  it; 
that  it  is  in  accordance  with  the  law  as  held  by  the  Su- 
preme Court  of  the  United  States. 

The  instruction  is  as  follows : 

"If  the  jury  believe  that  the  teller  of  the  Louisiana 
National  Bank  presented  a  bill  of  lading  to  the  agent  of 
the  express  company  for  his  signature  with  the  blanks 
filled  up,  and  at  such  time  delivered  to  the  agent  the  pack- 
age of  money,  without  disclosing  who  was  the  owner  of  it, 
but  addressed  to  the  plaintiff  at  Louisville,  that  the  bill 
of  lading  was  signed  and  re-delivered  to  the  teller,  and 
forwarded  to  the  plaintiff  at  Louisville,  then  the  bill  of 
lading  thus  signed  constitutes  the  contract,  and  all  the 
exceptions  in  it  are  a  part  of  the  contract,  no  matter 
whether  each  or  all  of  them  were  known  to  the  Louisiana 
National  Bank  or  not;  and  the  plaintiff" — 

That  is,  the  Bank  of  Kentucky — 

"Is  bound  by  the  contract,  whether  it  expressly  au- 
thorized the  Louisiana  National  Bank  to  make  it  or  not." 

Now,  that  is  precisely  this  case;  and  the  cases  read 
from  New  York,  and  the  one  from  Massachusetts,  by 
Col.  Totten,  are  all  in  the  same  direction.  Mr.  Tucker 
has  cited  two  or  three  cases  which  undoubtedly  seem  to 
contradict  that  doctrine,  but  the  great  weight  of  these 
cases  that  I  have  had  before  me  today  is  the  other  way, 
and  I  think  the  reason  is  certainly  the  other  way.  And,  of 
course,  while  it  is  possible  that  my  mind  might  be  changed 
upon  further  argument  and  examination,  I  am  obliged  to 
dispose  of  this  question  now;  and  my  best  judgment  at 


95 

this  time  is  that  these  contracts,  made  by  Smith  and  Caton, 
are  binding  upon  the  plaintiff  in  this  case.  That  being  so, 
they  created  a  lien,  a  conditional  lien,  upon  this  property, 
in  favor  of  the  railroad  company,  at  the  rate  of  a  dollar  a 
day  for  each  car,  after  the  lapse  of  forty-eight  hours.  It 
is  admitted  that  Mr.  Herr  received  notice  when  these  cars 
were  put  there;  that  they  remained  more  than  forty-eight 
hours;  that  the  demand  for  this  storage,  or  demurrage, 
or  whatever  it  is,  was  made  upon  him,  and  he  refused  to 
pay  it;  and  those  being  the  facts,  a  lien  is  established  in 
favor  of  the  company,  and  they  had  the  right  to  hold  the 
goods  until  the  lien  was  paid.  The  disposition  by  them  of 
this  property  for  the  purpose  of  paying  the  lien  would 
not  be  a  conversion ;  and  urrder  that  state  of  the  case,  the 
plaintiff  could  not  recover." 


CIRCUIT    COURT,    JEFFERSON    COUNTY,     KY., 

CHANCERY     DIVISION,     AND     BEFORE 

JAMES  H.  HAZELRIGG,  JUDGE  OF 

COURT    OF   APPEALS. 

APRIL,  1898. 


DUCKWALL 

VS. 
C.  C.  C.  AND  ST.  L.  RY.  CO. 


E.  G.  Duckwall  &  Company  obtained  a  mandatory 
injunction  against  the  C.  C.  C.  &  St.  L.  Ry  Co.  com- 
manding it  to  deliver  on  their  private  siding  cars  of  grain 
consigned  to  plaintiffs  at  Louisville.  The  Railway  Com- 
pany had  refused  to  deliver  on  consignee's  private  siding 
because  plaintiffs  were  indebted  for  car  service  to  the  P. 
C.  C.  &  St.  L.  Ry.  Co.  and  L.  &  N.  R.  R.  Co.  members 
with  defendant,  of  the  Louisville  Car  Service  Association. 


96 

The  lower  court  granted  an  injunction  and  afterward 
refused  to  dissolve  it,  on  the  ground  that  defendant  could 
not  withhold  a  car  because  of  unpaid  charges  on  previous 
cars,  and  a  fortiori  unpaid  charges  to  other  railway  com- 
panies on  previous  cars;  and  that  plaintiff  had  no  adequate 
remedy  at  law.  That  the  case  of  Kentucky  Wagon  Mfg. 
Co.  vs.  O.  &  M.  Ry.  Co.,  98  Ky.,  152,  was  inapplicable  be- 
cause in  that  case  the  consignees  had  combined  to  resist 
the  rules  of  the  Car  Service  Association  ascertained  by  the 
Court  of  Appeals  to  be  reasonable ;  that  Duckwall  admitted 
the  reasonableness  of  the  rules,  but  simply  refused  to  pay 
bills  whose  correctness  under  the  rules  he  disputed. 

On  the  motion  before  Judge  Hazelrigg  to  dissolve 
the  injunction,  the  Railway  Co.  contended  that  there  was 
no  distinction  in  principle  between  the  two  cases.     That  on 
the  theory  of  the  lower  court  a  plaintiff  to  obtain  an  injunc- 
tion against  the  enforcement  of  the  car  service  rules,  need 
only  proclaim  his  approval  of  them,  while  he  proceeded  to 
disregard  and  violate  them.     That  if  he  refrained   from 
impeaching  their  correctness  he  might,  ad  libitum,  refuse 
to  pay  charges  against  him  arising  under  the  rules  and 
obtain  a  mandatory  injunction  compelling  delivery  of  cars. 
That  such  a  doctrine  would  destroy  the  efficiency  of  the 
rules.     That  in  refusing  to  pay  car  service  charges   as- 
sessed against  him,  Duckwall  had,  as  had  the  plaintiffs  in 
the  Wagon  Company  case,  committed  the  first  wrong,  and 
was,  therefore,  not   entitled  to  the  interposition  of  the 
Chancellor.     Defendant  quoted  from  the  opinion  98  Ky., 
152,  that:     "The  conditions  upon  which  it  may  be  put  in 
'force  cannot  exist  except  at  the  will  of  the  shipper.     He 
'must  first  wrongfully  refuse  to  comply  with  the  rules  be- 
'fore  any  excuse  is  given  the  carrier  to  do  the  second 
'wrong,  and  we  think  the  appellant  cannot  complain  of  the 
'wrongdoing  of  the  carrier,  made   possible  by  his   own 
'wrongful  refusal  to  comply  with  other  reasonable  regula- 
tions of  the  carrier."     That  if  the  principle  announced  in 
the  Wagon  Co.  case  was  inapplicable  to  a  consignee  dis- 
puting a  bill,  every  consignee  could  escape  the  application 
of  the  principle  by  simply  disputing  car  service  bills.    That 
a  carrier  is  more  at  a  shipper's  mercy  in  regard  to  car  ser- 
vice charges  than  freight  charges,  because  his  lien  entitles 
him  to  hold  the  freight  for  the  latter;  but  that  although 
the  courts  recognize  his  lien  for  the  former,  he  would  be 
compelled  to  part  with  the  lien  if  compelled  by  injunction 


97 

to  deliver  cars  in  advance  to  a  private  siding.  That  he 
cannot  know  when  placing  the  car  on  the  private  track  that 
it  will  be  unloaded  in  48  hours,  so  that  when  the  charge 
becomes  possible  the  car  is  beyond  the  carrier's  control. 
That,  consequently,  the  only  remedy  of  the  carrier  is  to 
retain  on  its  own  delivery  tracks  the  cars  of  consignees, 
who  refuse,  or  fail,  to  pay  charges. 

Judge  Hazelrigg  delivered  the  following  opinion : 

It  is  somewhat  difficult  to  distinguish  this  case  from 
that  of  Wagon  Company  case.  It  is  true  that  company 
denied  the  legality  of  the  Association,  and  sought  to  de- 
stroy it,  and  while  this  is  not  attempted  here,  still  the 
Duckwalls  refused  to  pay  the  demurrage  charges  when 
presented.  And  if  this  is  permitted,  the  efficiency  of  the 
Association  is  seriously  impaired,  if  not  destroyed.  It 
seems  to  me  the  better  rule  for  all  parties  is  to  enforce  full 
compliance  with  the  car  service  regulations,  unless  they 
should  be  shown  to  be  oppressive  and  unjust  in  some  par- 
ticular case.  Here  there  is  at  least  a  fair  showing  made 
of  the  correctness  of  the  charges  against  the  Duckwalls, 
and  they  ought  to  have  paid  the  bills,  relying  on  the  Asso- 
ciation for  redress,  as  provided  in  its  by-laws,  or  failing  in 
which,  applying  to  the  courts  for  relief. 

If  the  plaintiff  ought  to  have  paid  these  bills  at  the 
time  they  were  presented,  not  waiving  their  right  to  ques- 
tion their  correctness  afterward,  then  when  they  refused 
to  so  pay,  were  they  not  guilty  of  the  first  wrong?  And 
if  so  guilty,  they  are  in  the  same  attitude  as  was  the  Wagon 
Company  in  the  case  cited.  This  is  the  way  the  matter 
occurs  to  me  on  this  preliminary  hearing;  and,  therefore, 
the  order  overruling  the  motion  to  dissolve  the  injunction 
ought  not  to  have  been  made. 

The  injunction  ought  to  have  been  dissolved,  and  it 
is  so  ordered. 

This  Apl.  16,  1898. 

J.  H.  HAZELRIGG, 

Judge  Ct.  Appeals. 

From  this  it  appears  that  if  the  consignee  be  permit- 
ted to  decline  to  pay  bills  and  nevertheless  enforce  by  in- 


98 

junction  delivery  of  their  cars  on  their  private  track,  the 
efficiency  of  the  Association  is  seriously  impaired,  if  not 
destroyed ;  and  that  the  better  rule  is  to  enforce  the  regu- 
lations unless  shown  to  be  oppressive  in  a  particular  case, 
relying  on  the  Association  for  redress,  and  failing  that, 
appealing  to  the  courts. 

It  would  seem  from  this  enunciation  that  in  such  a 
contest  some  foundation  for  the  charge  made  by  the  car- 
rier must  appear,  although  this  is  not  entirely  clear,  for 
the  judge  announces  that  the  plaintiff  ought  to  have  paid 
the  bills  without  prejudice  to  questioning  their  correctness 
afterward. 

Possibly  it  would  be  consistent  with  the  opinion  to 
hold  that  the  claim  of  such  fees  should  be  acceded  to  in 
every  case  just  as  a  passenger  must  yield  to  the  conduc- 
tor's claim  of  his  fare,  and  afterward  raise  any  question 
which  he  may  desire  with  the  carrier.  As  it  would  be 
impracticable  to  permit  a  passenger  to  try  with  the  con- 
ductor a  claim  of  offset  against  the  Company  so  it  would 
be  impracticable  while  the  car  stands  unloaded  upon  the 
sidetracks  to  discuss  the  merits  of  the  charges  made  by 
the  carrier  for  car  service;  but  in  each  case  the  question 
may  be  litigated  afterward. 

The  case  was  elaborately  argued  in  lower  Court,  and 
Court  of  Appeals  by  J.  A.  Allen  and  Augustus  Elbillson 
for  Duckwall,  and  Pirtle  and  Trabue,  counsel  for  the 
Louisville  Car  Service  Association,  and  Humphrey  & 
Davie,  for  the  C.  C.  C.  &  St.  L.  Ry.  Co 


99 


IN  THE  CIRCUIT  COURT  OF  MOBILE  COUNTY. 
ALA.,  JUNE  24th,  1898. 

UNREPORTED. 

THE  GULF  CITY  CONSTRUCTION  COMPANY 

VS. 
LOUISVILLE  &  NASHVILLE  RAILROAD  CO. 


This  was  a  suit  to  recover  three  hundred  and  eighty 
dollars,  car  service  paid  by  the  Construction  Company  to 
the  Louisville  &  Nashville  Railroad  Company  at  the  rate 
of  one  dollar  per  day  per  car  from  the  expiration  of  forty- 
eight  hours  after  the  arrival  of  the  freight  to  the  time  the 
freight  charges  were  paid  and  the  freight  delivered.  The 
plaintiff  offered  evidence  showing  the  following  facts,  viz. : 

The  Construction  Company  was  building  a  railroad 
for  the  Mobile,  Jackson  &  Kansas  City  Railroad  Company, 
and  had  constructed  tracks  and  a  railroad  yard  at  a  point 
in  Mobile,  known  as  "Frascati."  Carnegie  shipped  steel 
in  car  load  lots  to  the  Construction  Company  to  be  deliv- 
ered in  the  yards  of  the  Mobile,  Jackson  &  Kansas  City 
Railroad  at  Frascati,  with  a  guaranteed  rate  of  freight  en- 
dorsed upon  the  bills  of  lading.  Some  of  the  cars  arrived 
in  the  early  part  of  June,  1897,  and  others  arrived  from 
time  to  time  down  to  July  17th,  1897.  As  fast  as  a  car 
load  would  arrive,  the  Louisville  &  Nashville  Railroad 
Company  sent  notice  of  the  arrival  to  the  Construction 
Company,  stating  the  amount  of  freight  and  charges  on 
each  car.  In  each  instance  the  freight  charge  exceeded 
the  rate  stipulated  upon  the  bill  of  lading.  Immediately 
upon  receipt  of  the  first  notice  the  Secretary  of  the  Con- 
struction Company  called  the  attention  of  the  General 
Agent  of  the  Louisville  &  Nashville  Railroad  Company 
at  Mobile,  to  these  discrepancies  and  asked  that  the  errors 


100 

be  at  once  corrected,  and  the  agent  promised  to  do  so. 
In  the  early  part  of  July,  the  Secretary  of  the  Construc- 
tion Company  paid  the  railroad  company  twelve  hundred 
and  odd  dollars  on  account  and  received  part  of  the  steel, 
but  agreed  upon  no  settlement  of  the  differences.  On  July 
17th  the  Louisville  &  Nashville  Railroad  Company  pre- 
sented a  bill  against  the  Construction  Company  for 
freights  and  charges,  corrected  according  to  the  Construc- 
tion Company's  contention,  but  including  a  car  service 
charge  of  one  dollar  per  day  per  car  from  forty-eight  hours 
after  arrival  to  date,  and  refused  to  deliver  the  freight  un- 
til the  whole  bill  was  paid,  and  the  Construction  Company 
paid  the  bills  under  protest.  The  Construction  Company, 
previous  to  this  transaction,  paid  similar  car  service 
charges  and  knew  the  rules  of  the  Association,  but  on  ap- 
plication the  railroad  company  had  refunded  the  charges 
by  the  instructions  of  the  association.  When  the  plain- 
tiff's evidence  was  closed,  the  defendant  moved  the  court 
to  strike  out  all  of  the  evidence  upon  the  ground  that  it 
did  not  make  out  a  case  and  contended  that  the  railroad 
had  a  right  to  charge  a  reasonable  amount  for  the  use  of 
its  cars  while  being  detained  by  plaintiff's  failure  to  pay 
freight  and  charges  and  receive  its  property.  That  the 
Construction  Company  might  have  tendered  the  proper 
freight  and  charges  and  demanded  its  freight,  but  as  it  did 
not  do  so  it  could  not  avoid  liability  for  car  service  on  ac- 
count of  the  overcharge;  that  to  put  the  railroad  in  fault 
for  not  delivering,  it  should  have  tendered  what  was  justly 
due.  The  court  granted  the  motion  and  rules  out  all  of 
the  evidence.  No  further  evidence  was  offered,  and  the 
court,  at  the  request  of  the  defendant,  charged  the  jury  to 
find  a  verdict  for  the  defendant,  which  was  accordingly 
done.  The  jury,  under  the  instructions  of  the  Court,  then 
found  a  verdict  for  the  defendant. 


101 


SUPREME  COURT  OF  GEORGIA,  MARCH  2,  1900. 


35  S.  E.  R.,  369. 


DIXON,  ET.  AL. 

VS. 
CENTRAL  OF  GEORGIA  RAILWAY  CO. 


Carriers — Switching  Charges — Parol  Evidence — Special 
Contract — Rights  of  Parties — Freight — Delivery — 
Refusal  to  Pay  Charges. 


1.  The  test  of  distinction  between  "transportation" 
service,  relatively  to  loaded  freight  cars,  for  which  a  railway 
company  can  lawfully  charge  tonnage  rates,  and  "switch- 
ing" or  "transfer"  service,  for  which  it  is  restricted  to  a 
fixed  charge  per  car,  is  not  whether  the  movement  of  the 
cars  involves  the  use  of  a  portion  of  the  company's  main 
line  or  that  of  another;  for  there  may  be  a  transportation 
service  over  one  or  more  spur  tracks  of  the  same  com- 
pany, if  the  contract  of  affreightment  requires  no  move- 
ment  over  other  tracks   or  lines   of  railway,   whereas  a 
switching  or  transfer  service  is  one  which  precedes  or  fol- 
lows a  transportation  service,  and  applies  only  to  a  ship- 
ment on  which  legal  freight  charges  have  already  been 
earned  or  are  to  be  earned. 

2.  Parol  evidence  is  admissible  to  explain  the  mean- 
ing of  the  terms  "transportation,"  "switching,"  and  "trans- 
fer," as  applied  to  railroad  operation. 

3.  A  contract  between  a  city  and  a  railway  company 
for  reduced  freight  rates  upon  goods  transported  by  the 
company  for  the  municipality  does  not  inure  to  the  benefit 
of  one  under  contract  with  the  city  to  deliver  to  it  at  a 
fixed  price  supplies  f.  o.  b.  at  the  point  of  delivery. 

4.  Though  a  person  who  had  contracted  with  a  city 
to  furnish  it  with  coal  for  use  in  running  a  system  of  water- 


102 

works  became  the  head  of  the  water  commission  of  such 
city,  he  could  not,  because  of  his  official  position  as  such, 
avail  himself  of  the  terms  of  a  transportation  contract  be- 
tween the  city  and  a  railway  company,  whereby  the  former 
had  secured  reduced  freight  charges  upon  goods  or  sup- 
plies hauled  for  its  benefit. 

5.  The  relation  of  shipper  and  carrier  does  not  begin 
between   the    owner   of    goods    and   a    railway    company, 
though  the  former  may  have  delivered  the  goods  to  the 
latter,  if  after  such  delivery  anything  required,  either  by 
law  or  the  contract,  remains  to  be  done  by  the  shipper,  and 
in  such  case  the  rights  and  liability  of  the  company  are 
those  only  of  a  warehouseman. 

6.  Where  goods  to  be  shipped  are  situated  upon  a 
spur  track  of  a  railway  company,  and  the  owner  has  no 
track  scales,  thus  rendering  it  necessary  to  move  the  load- 
ed cars  to  the  company's  depot  for  the  purpose  of  weigh- 
ing the  same,  so  as  to  ascertain  the  proper  amount  of 
freight  charges,  the  delivery  of  such  cars  will  be  treated  as 
having  been  made  to  the  company  at  such  depot. 

7.  When  such  a  delivery  is  in  fact  made,  and  the 
shipper  refuses,   on   demand,   to   pay   the   proper   freight 
charges,  and  the  goods  are  left  in  the  custody  of  the  com- 
pany, it  has  a  lien  upon  such  goods  for  proper  storage 
charges,  whether  they  be  left  in  the  cars  or  removed  into  a 
warehouse. 

8.  Where  several  cars  are  left  in  the  custody  of  a 
railway  company  under  such  conditions  as  those  just  indi- 
cated, the  company  may  retain  possession  of  the  goods  in 
all  of  them  until  its  just  charges  are  paid. 

9.  While  the  motion  for  a  new  trial  contained  a  large 
number  of  grounds,  the  principles  of  law  above  announced 
are  controlling  in  this  case,  and,  upon  the  merits,  the  evi- 
dence demanded  the  verdict. 

(Syllabus  by  the  Court.) 

Error  from  Superior  Court,  Chatham  County;  R.  Fal- 
ligant,  Judge. 

Action  by  the  Central  of  Georgia  Railway  Company 
against  C.  H.  Dixon  &  Co.,  Agents.  Judgment  for  plain- 
tiff. Defendants  bring  error.  Affirmed. 


103 


Saussy  &  Saussy,  for  plaintiffs  in  error.     Lawton  & 
Cunningham,  for  defendant  in  error. 


LEWIS,  J.— On  the  1st  day  of  August,  1898,  the  Cen- 
tral of  Georgia  Railway  Company  instituted,  under  Section 
2816  of  the  Civil  Code,  proceedings  to  foreclose  a  lien  on 
four  cars  of  coal  received  by  it  from  the  defendants,  C.  H. 
Dixon  &  Co.,  Agents,  on  June  7,  1898.  It  was  claimed  in 
the  affidavit  of  foreclosure  that  this  coal  was  received  by 
the  company  at  its  place  of  business  in  the  city  of  Savan- 
nah, to  be  shipped  to  the  waterworks  in  said  city,  for  which 
the  defendants  refused  to  pay  the  regular  rates  of  17J  cents 
per  ton  demanded  by  the  company,  and  since  the  date  of 
their  receipt  the  four  cars  of  coal  have  been  in  its  posses- 
sion, as  depositary  for  hire,  in  its  yard  in  the  city  of  Savan- 
nah. The  proceedings  were  for  the  purpose  of  foreclosing 
a  lien  claimed  by  the  company  as  a  depositary  for  hire.  It 
was  further  urged  in  the  affidavit  of  foreclosure  that  these 
cars  of  coal  were  received  by  the  company  with  the  under- 
standing that  Dixon  &  Co.,  Agents,  would  prepay  any 
freight  charges  thereon,  which  they  refused  to  do.  Fi.  fa. 
was  issued  upon  this  affidavit  of  foreclosure,  and  levied 
upon  the  coal.  To  this  proceeding  C.  H.  Dixon,  trading 
under  the  name  of  C.  H.  Dixon  &  Co.,  Agents,  filed  an 
affidavit  of  illegality  on  the  several  grounds,  embracing 
substantially  the  following  as  defenses :  (1)  It  did  not  ap- 
pear from  plaintiff's  affidavit  it  had  completed  its  contract 
of  shipment,  so  as  to  entitle  it  to  any  lien  for  freight 
charges.  (2)  The  place  of  shipment  was  the  waterworks, 
and  it  did  not  appear  that  there  was  any  delivery  of  the 
freight  tendered  at  the  place  of  destination.  (3)  The 
charge  in  the  proceedings  for  foreclosure  was  for  storage, 
while  the  bill  of  particulars  attached  thereto  was  for  de- 
murrage, for  which  charge  there  is  no  lien  prescribed  un- 
der the  statute.  (4)  The  company  had  no  lien  on  the 
property  levied  upon.  (5)  The  amount  set  forth  in  the 
affidavit  of  foreclosure  or  no  part  thereof  was  due.  (6) 
Plaintiff  received  the  cars  from  the  place  of  business  of 
defendant  on  River  street  under  a  contract  to  deliver  the 
same,  as  per  consignment,  to  the  city  of  Savannah,  at  the 
wharf  of  said  railroad,  at  the  end  of  River  street,  in  said 
city;  and,  before  any  charges  could  accrue  against  the 
shipment,  defendant  tendered  to  plaintiff  the  cost  of  track- 


104 

age  along  River  street,  the  usual  and  customary  charge  for 
such  service,  and  a  charge  regulated  under  the  ordinances 
of  the  city  of  Savannah,  to  wit,  one  dollar  per  car;  that 
the  company  operates  the  line  on  River  street  for  purposes 
of  transfers,  said  track  being  no  part  of  the  main  stem  of 
the  railway.  This  defendant,  in  behalf  of  the  city  of  Sa- 
vannah, and  under  authority  of  the  chairman  of  the  water- 
works commission,  which  has  control  of  the  Savannah 
waterworks,  accepted  the  freight  at  the  wharf  of  plaintiff, 
and  ordered  the  freight  transferred  to  the  Savannah  water- 
works, and  tendered  plaintiff  the  sum  of  one  dollar  per 
car,  being  the  rate  for  such  transfer.  Plaintiff  refused  the 
tender,  and  retained  possession  of  the  goods  unlawfully. 
It  is  further  claimed  in  the  affidavit  of  illegality  that  the 
rules  of  the  railroad  commission  of  Georgia  provided  that 
the  failure  of  a  railroad  company  to  deliver  freight  entitles 
the  shipper  to  recover  damages  at  the  rate  of  one  dollar 
per  car,  and  that  was  pleaded  as  an  offset.  It  was  the 
duty  of  the  plaintiff  to  deliver  the  freight  to  the  Florida, 
Central  and  Peninsular  Railroad  Coimpany,  with  which 
company  it  had  a  contract  concerning  transportation  of 
freight  for  said  waterworks,  whereby  the  last  named  com- 
pany was  to  haul  all  freight  to  said  point  without  charge, 
inasmuch  as  the  spur  track  leading  from  the  main  line 
of  the  plaintiff  to  the  waterworks  was  used  in  part  by 
the  Florida,  Central  &  Peninsular  Railroad  Company  as 
a  means  of  approach  to  the  depot  in  the  city  of  Savannah. 
It  also  alleged  that  the  waterworks  were  not  situate  on  the 
main  line  of  plaintiff's  railway,  nor  upon  any  connecting 
road,  so  as  to  enable  plaintiff  to  charge  regular  freight 
rates  for  transportation;  but  the  waterworks  were  situate 
on  a  spur  track  built  by  the  city  of  Savannah,  and  by  it 
turned  over  to  plaintiff's  predecessor  upon  express  condi- 
tion that  all  freight  consigned  to  said  city  at  the  water- 
works should  be  hauled  and  delivered  at  the  rate  of  one 
dollar  per  loaded  car  as  trackage ;  and  the  waterworks  not 
being  upon  the  main  line  of  plaintiff,  nor  upon  the  line  of 
any  other  railroad  or  station,  or  public  place  for  delivery 
of  freight,  and  being  within  three  miles  of  plaintiff's  wharf 
and  the  wharf  of  defendant,  said  waterworks  stand  upon 
the  same  footing  as  warehouses  and  factories,  and  plaintiff, 
upon  completion  of  its  contract  of  affreightment,  was  not 
entitled  to  charge  any  more  than  the  rate  allowed  by  law 
for  trackage. 


105 

It  substantially  appears  from  the  evidence  in  the  rec- 
ord that  C.  H.  Dixon  &  Co.,  Agents,  were  coal  merchants, 
whose  place  of  business  was  on  River  street,  adjacent  to 
the  River  street  track  of  the  Central  Railway.  Dixon  & 
Co.  had  a  contract  with  the  water  commissioners  of  the 
city  of  Savannah  to  deliver  coal  f.  o.  b.  cars  at  the  water- 
works, which  was  about  two  miles  out  of  the  city,  and  con- 
nected with  the  terminals  of  the  Central  by  a  track  known 
as  the  "Waterworks  Track."  This  last  track  was  also 
owned  by  the  Central,  which  laid  the  same  on  the  land  be- 
longing to  the  city,  and,  upon  completion  of  the  water- 
works, the  track  and  roadway  was  ceded  by  the  city  to  the 
Central,  and  a  contract  was  entered  into  between  them 
"that  the  trackage  charge  to  the  city  shall  not  exceed  the 
sum  of  one  dollar  per  loaded  car  for  all  cars  received  from, 
or  delivered  to,  the  said  city  on  said  spur  track."  It  seems 
this  track  was  under  lease  to  the  Florida,  Central  &  Pen- 
insular Railroad  Company,  being  the  track  on  which  its 
railroad  entered  the  city,  but  it  was  agreed  in  the  lease 
that  railroad  would  switch  the  cars  of  the  Central  of  Geor- 
gia "to  and  from  the  waterworks,  and  such  other  indus- 
tries as  may  be  located  thereon,  over  said  track,  free  of 
compensation,  and  as  promptly  as  their  own  similar  ser- 
vice is  performed,  and  when  so  engaged  the  agents  and 
servants  of  the  Florida  Railroad  shall  be  considered  as 
servants  of  the  Central  Railroad."  It  would  seem  there- 
fore, as  to  this  case,  the  waterworks  track  may  be  treated 
as  substantially  the  track  of  the  Central  of  Georgia  Rail- 
way. 

C.  H.  Dixon  &  Co.  was  a  firm  composed  only  of  C.  H. 
Dixon,  who  became  insolvent  a  few  months  before  the 
time  of  this  shipment.  Pending  the  incorporation  of  a 
company  which  was  to  be  known  as  the  "C.  H.  Dixon 
Company,"  the  incorporators  of  which  were  the  said  C.  H. 
Dixon  and  his  two  brothers,  M.  W.  and  James  M.  Dixon, 
the  business  formerly  conducted  by  the  defunct  firm 
passed  into  the  hands  of  C.  H.  Dixon  &  Co.,  Agents,  who 
assumed  the  contract  with  the  waterworks  commissioners 
to  deliver  coal  free  on  board  cars  at  the  waterworks.  C. 
H.  Dixon  ran  the  business  of  Dixon  &  Co.,  Agents,  where- 
of his  brother,  J.  M.  Dixon,  was  the  principal.  J.  M.  Dix- 
on was  surety  for  the  faithful  performance  of  the  contract 
of  Dixon  &  Co.  with  the  waterworks  commission,  and  he 
was  also  chairman  of  the  waterworks  commission,  a  body 


io6 

created  by  the  legislature.  See  Acts  1895,  p.  300.  That 
act  provided  that  an  oath  of  office  be  taken  by  each  mem- 
ber of  the  commission,  which  was  duly  taken  by  J.  M.  Dix- 
on,  as  follows :  "I  swear  that  I  will  not  be  concerned  or 
interested,  pecuniarily,  in  any  way  *  '  *  *  in  any  con- 
tract for  the  purchase  of  property  or  supplies  for  said 
waterworks,  while  a  member  of  said  board."  C.  H.  Dixon 
&  Co.,  Agents,  were  hot  on  the  credit  list  of  the  Central  of 
Georgia  Railway,  and  the  pre-payment  of  freight  was  al- 
ways exacted.  The  rate  which  the  Central  had  uniformly 
charged  for  shipments  of  coal  from  any  point  on  the  River 
street  track  to  the  waterworks  was  17J  cents  a  ton.  The 
railroad  commission  rate  for  a  distance  of  five  miles  and 
under  was  35  cents  per  ton.  The  distance  from  Dixon's 
wharf  to  the  waterworks  is  2.64  miles.  In  1896  C.  H. 
Dixon  and  H.  M.  Comer,  who  was  then  receiver  of  the 
Central,  by  contract,  made  the  rate  of  freight  between 
these  points  of  17£  cents  a  ton,  which  seems  to  be  half  of 
what  the  law  permitted  the  Central  to  charge.  For  an 
ordinary  transfer  or  switching  service  on  the  River  street 
track  the  railroad's  charge  was  uniformly  one  dollar  per 
car. 

It  appears  from  the  evidence  that  these  rates  were 
uniformly  charged  and  paid  by  Dixon  &  Co.,  Agents,  who 
had  shipped  a  number  of  cars  under  their  contract  with 
the  Central,  and  that  they  paid  these  charges  without  any 
objection  whatever  up  to  the  time  of  the  shipment  in  ques- 
tion. Dixon  &  Co.,  Agents,  had  no  track  scales  at  their 
wharf,  and  the  only  way  in  which  the  amount  of  freight 
could  be  determined,  if  the  tonnage  rate  applied,  was  to 
weigh  the  cars  on  the  track  scales  in  the  Central  Railway 
yards.  The  four  cars  in  question  were,  on  this  account, 
loaded  with  coal  on  the  River  street  track,  adjacent  to 
Dixon's  place  of  business  for  the  purpose  of  being  shipped 
to  the  waterworks.  The  Central  took  the  cars  up  to  fts 
yard,  weighed  them,  and  sent  the  weights  to  Dixon  &  Co., 
Agents,  with  a  bill  for  $17.20,  freight  charges,  that  being 
the  amount  at  the  rate  of  17J  cents  per  ton,  and  the  ship- 
per, instead  of  sending  that  amount,  sent  the  Central  a 
check  of  $8,  or  $2  per  car.  This  the  Central  refused  to 
accept.  It  seems  the  shipper  thereupon  complained  to  the 
city  that  the  Central  had  violated  its  contract  with  the  city, 
and  would  not  transfer  the  cars  from  the  wharf  to  the  water- 
works for  one  dollar  per  car.  The  city  declined  to  grant 


icy 

the  relief  sought  by  the  shipper,  and  replied  that,  his  con- 
tract being  to  deliver  coal  f.  o.  b.  cars  at  the  waterworks, 
it  was  a  matter  of  indifference  to  the  city  how  much  freight 
the  shipper  paid. 

It  appears  from  the  evidence  that  J.  M.  Dixon  was 
the  principal  actor  in  this  matter  for  C.  H.  Dixon  &  Co., 
Agents,  and  that  he  was  also  chairman  of  the  water  com- 
mission. A  letter  was  written  by  them  to  the  agent  of  the 
Central  at  its  wharf,  consigning  the  cars  to  the  city  of  Sa- 
vannah, for  which  they  made  a  tender  of  one  dollar  per 
car  for  River  street  trackage.  J.  M.  Dixon,  as  chairman 
of  the  commission,  also  wrote  a  letter  to  the  agent  of  the 
Central,  instructing  him  to  transfer  to  the  waterworks,  in 
accordance  with  the  agreement  between  the  city  and  the 
railway,  at  one  dollar  per  car,  the  coal  which  had  been 
consigned  to  the  city  at  the  Central  wharves;  thus  making 
the  rate  from  Dixon's  wharf  to  the  waterworks  only  two 
dollars  per  car.  It  further  appears  from  the  record  that 
J.  M.  Dixon  did  not  consult  any  member  of  the  board  of 
the  water  commission  about  writing  the  letter,  and  that 
the  money  he  tendered  came  out  of  his  own  pocket.  The 
shipper  having  declined  to  pay  the  rate  demanded,  the 
cars  remained  where  they  were  when  the  difference  arose 
between  the  parties,  and  the  railway  assessed  charges  for 
storage,  and  foreclosed  its  lien  as  a  depositary  for  hire. 

1.  The  vital  question  in  this  case,  and  one  upon 
which  its  determination  mainly  depends,  is  whether  or  not 
the  service  for  which  the  railway  was  charging  the  shipper 
of  this  coal  was  "transportation"  service  or  "transfer"  or 
"switching"  service.  It  appears  from  the  record  that  an 
appeal  was  made  by  the  plaintiff  in  error  to  the  railroad 
commission,  by  which  proceeding  it  was  sought  to  get  the 
railroad  commission  to  enforce  in  this  matter  its  rule  No. 
25  in  language  as  follows :  "A  charge  of  no  more  than 
two  dollars  per  car  will  be  allowed  for  switching  or  trans- 
ferring a  car  from  any  point  on  any  road  to  any  connect- 
ing road  or  warehouse  within  a  space  of  three  miles  from 
starting  point,  without  regard  to  weight  or  contents." 
From  the  facts  in  the  record  it  appears  that  this  rule  mani- 
festly applies  to  what  is  known  as  "switching"  or  "trans- 
fer" service,  and  it  was  claimed  by  counsel  for  plaintiff  in 
error  that  it  was  applicable  to  this  case,  where  it  was  purely 


a  transfer  service,  as  the  shipment  of  the  goods  was  con- 
fined to  what  is  known  as  "spur  tracks"  of  the  railroad. 
On  the  other  hand,  it  was  contended  by  counsel  for  de- 
fendant in  error  that  that  rule  had  no  application  whatever 
to  this  service,  for  transfer  or  switching  service  only  re- 
lates to  the  removal  of  cars  over  spur  tracks  after  they 
have  reached  the  terminal  point  of  some  railroad  line,  and, 
without  being  unloaded,  are  transferred  on  a  spur  track 
usually  to  the  place  of  business  of  the  consignee.  It  is 
therefore  contended  that  switching  service  applies  only  in 
cases  where  there  necessarily  preceded  or  succeeded  such 
service  the  payment  of  freight  for  transportation  over 
some  line  of  railway.  From  this  contention  it  would  fol- 
low, for  example,  that  if  Dixon  &  Co.  had  ordered  freight 
over  the  Central  to  be  shipped  to  Savannah  from  Macon, 
Ga.,  they  would  be  liable  for  regular  rates  of  transporta- 
tion from  that  point  to  the  railway  terminal  at  Savannah, 
and  the  Central,  in  shipping  the  freight  from  its  depot  over 
the  spur  track  to  Dixon  &  Co.'s  place  of  business,  would 
simply  be  entitled  to  the  rates  fixed  for  such  transfer  ser- 
vice; or,  if  Dixon  &  Co.  desired  the  Central  to  transport 
freight  from  their  place  of  business  in  Savannah  to  Macon, 
and  the  Central  transported  the  goods  over  its  spur  track 
from  the  shipper's  place  of  business  to  its  depot,  it  could 
only  charge  additional,  for  this  part  of  the  transportation, 
simply  the  switching  service  rate.  We  think  the  case  is 
quite  different  when  the  shipment  of  freight  is  entirely  con- 
fined to  such  a  spur  track.  The  uncontradicted  evidence 
shows  that  the  necessary  expenses  for  such  a  shipment 
could  not  be  met  by  payment  of  the  small  rate  prescribed 
for  a  transfer  or  switching  service,  and  these  small  rates 
are  chargeable  only  in  cases  where  revenue  is  derived  for 
transporting  the  freight  over  a  railway  which  must  either 
precede  or  follow  the  service  rendered  on  the  spur  track. 
In  this  case  the  contract  of  carriage  involved  a  transporta- 
tion from  Dixon's  wharf  to  the  waterworks.  That  con- 
stituted the  entire  service,  and  the  fact  that  that  entire  ser- 
vice was  rendered  on  spur  tracks  of  a  railway  company  we 
do  not  think  prevents  it  from  being  transportation,  pure 
and  simple. 

It  appears  from  the  record  that  the  shipper  in  this  case 
appealed  to  the  railroad  commission  to  enforce  its  rule  No. 
25,  above  quoted,  and  that,  after  hearing  the  application, 
the  commission  decided  that  the  shipper  was  not  entitled  to 


io9 

the  relief  sought,  and  that  the  service  rendered  by  the  Cen- 
tral in  the  case  was  really  for  transportation,  and  hence  it 
had  the  right  to  make  the  charge  in  accordance  with  the 
rule  of  the  railroad  commission,  which  allowed  for  the 
transportation  of  freight  over  routes  under  five  miles  a  rate 
of  35  cents  per  ton.  In  the  present  case  the  Central  only 
charged  half  this  sum.  It  does  seem  that  this  decision  of 
the  railroad  commission  in  this  identical  case  should  oper- 
ate as  conclusive  evidence  of  the  reasonableness  and  legal- 
ity of  the  charge  exacted  by  the  Central  against  the  shipper. 
Section  2189  of  the  Civil  Code  provides:  "The  commis- 
sioners shall  make  reasonable  and  just  rates  of  freight,  and 
*  *  *  shall  make  reasonable  and  just  rules  and  regula- 
tions, to  be  observed  by  all  railroad  companies  doing  busi- 
ness in  this  state,  as  to  charges  at  any  and  all  points  for 
the  necessary  handling  and  delivering  of  freights."  And, 
under  Section  2190  of  the  Civil  Code,  it  is  provided  that  in 
suits  brought  against  such  corporations  the  commission's 
schedules  of  rates  shall  be  deemed  and  taken  in  all  the 
courts  of  this  state  as  sufficient  evidence  that  the  rates  there- 
in fixed  are  just  and  reasonable  rates  of  charges  for  trans- 
portation. Even  if  the  construction  the  commission  has 
placed  upon  its  own  rule  is  not  conclusive  upon  the  parties, 
it  certainly  should  receive  great  weight,  under  the  law,  with 
the  courts.  But,  in  addition  to  this,  a  quantity  of  evidence 
was  introduced  in  behalf  of  the  Central  Railway  by  witnesses 
expert  in  railroad  business,  and  familiar  with  the  meaning 
of  certain  terms  used  in  connection  with  such  business,  who 
defined  what  was  meant  by  transportation  and  switching 
service,  and  distinguished  the  difference  exactly  in  accord 
with  the  contention  of  counsel  for  defendant  in  error  in 
this  case.  We  therefore  think,  in  the  light  of  all  the  evi- 
dence in  the  record,  that  the  service  undertaken  by  the 
Central  in  this  case  was  purely  transportation  service,  and 
that  the  rates  with  reference  to  transfer  or  switching  cars 
over  spur  tracks  had  no  application  whatever. 

2.  Error  is  assigned  in  the  motion  for  a  new  trial 
upon  the  admission  of  parol  evidence  for  the  purpose  of 
explaining  the  meaning  of  the  terms  "transportation," 
"transfer,"  and  "switching,"  as  applied  to  railroad  corpora- 
tions. This  question  involves  the  construction  of  words 
used  in  connection  with  a  particular  subject-matter.  Ex- 


no 


perts  in  the  business  were  offered  as  witnesses  to  testify 
as  to  their  common  acceptation  and  usage  when  applied  to 
the  operation  of  railroad  companies.  We  think  the  Po- 
litical Code  Section  4  (1)  settles  the  question.  It  declares : 
''The  ordinary  signification  shall  be  applied  to  all  words, 
except  words  of  art,  or  connected  with  a  particular  trade 
or  subject-matter,  when  they  shall  have  the  signification 
attached  to  them  by  experts  in  such  trade,  or  with  refer- 
ence to  such  subject-matter."  See,  also,  Civil  Code,  Sec- 
tion 3675  (2),  where  it  is  declared :  "Words  generally 
bear  their  usual  and  common  signification;  but  technical 
words,  or  words  of  art,  or  used  in  a  particular  trade  or 
business,  will  be  construed  generally,  to  be  used  in  refer- 
ence to  this  peculiar  meaning.  The  local  usage  or  under- 
standing of  a  word  may  be  proved  in  order  to  arrive  at  the 
meaning  intended  by  the  parties."  See,  also,  1  Greenl. 
Ev.  280,  where  the  principle  of  allowing  parol  evidence  in 
such  cases  is  clearly  recognized. 

3,  4.  It  was  further  insisted  in  behalf  of  plaintiff  in 
error  that  the  contract  between  the  city  of  Savannah  and 
the  Central  for  reduced  freight  rates  upon  goods  transported 
by  the  company  for  the  municipality  was  binding  upon  the 
former  in  this  case,  and  that  it  could  not  charge  for  ser- 
vice of  this  transportation  from  the  depot  to  the  water- 
works any  more  than  the  price  stipulated  in  that  contract 
of  one  dollar  per  car.  It  is  manifest  from  the  evidence  in 
the  record  that  this  contract  between  the  Central  and  the 
city  had  nothing  whatever  to  do  with  the  contract  between 
the  parties  to  this  case.  The  contract  made  with  the  city 
had  direct  reference  only  to  such  goods  as  were  consigned 
to  the  city,  and  for  the  payment  of  which  the  municipality 
itself  wras  liable.  In  this  case  the  shippers  were  under 
contract  with  the  water  commission  of  Savannah  to  deliver 
to  it  coal  f.  o.  b.  the  cars  at  the  waterworks.  It  is  true  that 
the  active  manager  of  the  business  of  Dixon  &  Co.,  J.  M. 
Dixon,  was  also  chairman  of  the  water  commission.  He 
adopted  the  scheme  of  writing  a  letter  to  the  agent  of  the 
Central  instructing  him  to  transfer  to  the  waterworks  the 
coal  which  had  been  consigned  to  the  city,  but  he  had 
no  authority  Whatever  for  giving  such  direction.  It  was 
certainly  never  authorized  by  the  city  itself,  through  its 
officials,  nor  was  it  authorized  by  any  resolution  or  other 


Ill 

action  taken  by  the  board  of  water  commissioners.  On 
the  contrary,  it  appears  that  he  intended  to  make  the  pay- 
ment himself  out  of  his  own  pocket,  and  that  it  was  in  no 
wise  a  charge  upon  the  city.  When  he  made  his  appeal  to 
the  municipal  authorities  of  the  city,  they  gave  the  same 
construction  of  this  contract  as  was  adopted  by  the  Cen- 
tral, and  declined  to  grant  any  relief  whatever. 

5,  6.  It  was  further  contended  by  counsel  for  plaintiff 
in  error  that  the  railway  company  in  this  case  occupied 
the  position  of  a  common  carrier;  that  it  had  failed  to 
comply  with  its  obligations  to  transport  the  goods  to  their 
destination ;  that  it  never  occupied  the  position  of  a  ware- 
houseman, and  therefore  had  no  lien  upon  the  property  for 
storage.  It  was  further  contended  that  the  duty  devolved 
upon  the  company,  unless  it  intended  to  transport  the  prop- 
erty to  its  destination,  to  re-ship  it  to  the  consignor,  and 
that  the  company  had  no  right  to  hold  the  same,  and  thus 
accumulate  against  the  shipper  charges  for  storage.  Under 
the  facts  of  this  case,  we  do  not  think  there  is  any  question 
but  that  the  company  occupied  the  position  of  a  ware- 
houseman. It  is  true  the  goods  had  been  transferred  from 
the  place  of  business  of  the  shipper  to  the  company's  yards, 
but  that  was  absolutely  necessary,  in  order  to  determine 
what  would  be  a  proper  charge  for  transportation.  There 
was  no  means  of  weighing  the  cars  at  the  shipper's  place 
of  business,  where  they  were  loaded.  This  weight  was  ab- 
solutely necessary  in  order  to  determine  the  amount  of 
freight,  and  hence  they  had  to  be  transferred  to  the  com- 
pany's yards  for  this  purpose.  We  think,  therefore,  the 
delivery  of  the  cars  should  be  treated  as  having  been  made 
to  the  company  at  its  depot.  Under  the  contract  between 
the  carrier  and  shipper  in  this  case,  a  prepayment  of  the 
freight  was  required  before  any  obligation  rested  upon  the 
carrier  to  transport  the  goods  to  their  destination.  This 
the  shipper  wrongfully  refused  to  pay,  and,  clearly,  the 
duties  of  the  company  as  a  common  carrier  did  not  begin, 
although  the  delivery  of  the  goods  for  shipment  had  been 
made,  as  long  as  anything  remained  to  be  done  by  the  ship- 
per himself.  In  5  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  261, 
that  author  says:  'The  rule,  broadly  stated,  is  that  if,  after 
the  delivery  of  the  goods  for  shipment,  anything  remains 
to  be  done  by  the  shipper,  the  liability  of  the  carrier  as  in- 


112 


surer  does  not  attach,  and  it  is  responsible  only  as  a  ware- 
houseman." In  the  case  of  Barren  vs.  Eldredge,  100  Mass. 
458,  Colt,  J.,  in  discussing  this  subject,  says:  "The  respon- 
sibility of  a  common  carrier  for  goods  intrusted  to  him 
commences  when  there  has  been  a  complete  delivery  for 
the  purpose  of  immediate  transportation.  *  *  *  The 
delivery  must  be  for  immediate  transportation,  and,  of 
course,  it  cannot  be  complete  if  anything  remains  to  be 
done  by  the  shipper  before  the  goods  can  be  sent  on  their 
way."  The  same  principle  is  announced  in  Hutch.  Carr. 
Section  63.  It  is  therein  stated  that  no  one  can  be  charge- 
able as  a  carrier,  but  merely  as  a  warehouseman,  until  the 
shipper  has  complied  with  every  duty  upon  him  which  it 
was  necessary  for  him  to  discharge  before  shipment,  and 
the  author  thus  illustrates:  "As  where  the  goods  are 
deposited  without  instructions  as  to  their  place  of  destina- 
tion, either  by  marks  or  otherwise,  or  to  await  orders,  or 
until  the  charges  for  the  transportation  are  paid,  if  that  is 
required  by  the  carrier;  or  if  anything  remains  to  be  done, 
or  any  expense  to  be  incurred,  to  put  them  in  a  condition 
to  bear  transportation."  While  the  company,  therefore, 
retained  this  property  on  board  its  cars  at  its  depot,  on  ac- 
count of  the  failure  of  the  shipper  to  comply  with  the  con- 
ditions precedent  to  its  shipment,  it  occupied,  as  to  him, 
the  position  of  a  warehouseman.  There  is  nothing  in  the 
contention  that  the  company  should  have  returned  the  prop- 
erty to  the  consignor.  He  made  no  demand  therefor.  On 
the  contrary,  he  insisted  upon  the  company  transporting 
the  goods  to  their  destination  without  complying  with  his 
obligations  under  the  contract.  The  position  of  the  com- 
pany, therefore,  was  lawful,  and  it  had  a  right  to  charge 
storage  for  this  purpose.  The  fact  that  the  goods  were 
stored  in  its  cars  instead  of  a  warehouse  did  not  change  the 
company's  position  as  a  depositary  for  hire.  Miller  vs. 
Banking  Co.,  88  Ga.  563,  15  S.  E.,  316,  18  L.  R.  A.  323. 

7.  It  appears  that  the  Central  Railway  adopted  Rule 
4,  Section  2,  of  the  car  service  rules,  which  is  in  the  fol- 
lowing language:  uOn  cars  placed  for  loading,  free  time 
will  expire  forty-eight  hours  from  the  time  the  loading  of 
car  commences,  and  car-service  charges  will  continue  on 
same  until  shipping  instructions  are  given  and  bill  of  lading 
taken  out."  In  accordance  with  the  power  conferred  upon 


the  railroad  commission  by  virtue  of  Civil  Code,  Section 
2206,  to  prescribe  a  schedule  of  maximum  rates  and  charges 
for  storage  of  freight,  the  commission  has  passed  rules 
known  as  "demurrage  rules";  regulating  charges  for  stor- 
age of  goods  in  cars,  which  rules  are  similar  to  the  ser- 
service  rule  above  quoted.  The  rates  charged  by  the  Cen- 
tral in  this  case  were  within  the  limits  prescribed  by  those 
regulations.  The  term  "demurrage,"  as  used  in  its  tech- 
nical sense,  applies  to  maritime  law,  and  has  been  held  by 
some  authorities  that  it  is  confined  to  carriers  by  water; 
but  it  is  evidently,  under  these  rules  of  the  commission  and 
by  railroad  companies,  not  used  in  its  technical  sense.  It 
was  no  doubt  adopted  as  a  convenient  term,  as  contended 
by  counsel  for  defendant  in  error,  to  represent  the  storage 
of  goods  in  cars,  as  distinguished  from  the  storage  in  ware- 
house. The  right  to  charge  for  such  storage  in  cars  arises 
when  the  goods  are  necessarily  detained  by  virtue  of  the 
failure  of  the  shipper  to  comply  with  his  obligations  to  the 
carrier.  The  company  is  in  this  way  deprived  of  the  use  of 
its  cars,  and,  even  if  the  rules  adopted  in  this  particular 
case  as  to  such  charges  did  not  apply,  they  would  still 
be  entitled  to  reasonable  charges  as  a  warehouseman  or 
as  a  depositary  for  hire.  In  28  Am.  &  Eng.  Enc.  Law,  p. 
667,  it  is  stated:  "In  the  absence  of  a  special  agreement 
as  to  charge,  the  law  implies  a  contract  to  pay  a  rasonable 
compensation."  In  Elliott,  R.  R.  Section  1567,  that  author 
in  discussing  this  subject,  says:  "While  it  is  probably  true 
that  this  right  [of  demurrage]  is  derived  by  analogy  from 
the  maritime  law  as  administered  in  America,  the  more  re- 
cent authorities  have  almost  unanimously  upheld  the  right 
of  railroad  companies  to  make  demurrage  charges  in  proper 
cases."  The  author  then  quotes  the  following  observation 
from  one  of  the  decisions  of  the  courts:  "We  see  no  sat- 
isfactory reason  why  carriers  by  railroads  should  not  be  en- 
titled to  compensation  for  the  unreasonable  delay  or  deten- 
tion of  their  vehicles  as  well  as  carriers  by  sea."  On  the 
same  line,  see  Norfolk  &  W.  R.  Co.  vs.  Adams,  90  Va.  393, 
18  S.  E.  673,  22  L.  R.  A.  530;  Kentucky  Wagon  Mfg.  Co. 
vs.  Ohio  &  M.  Ry.  Co.,  98  Ky.  152,  32  S.  W.  595,  36  L.  R. 
A.  850;  9  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  261. 

It  is  insisted  by  counsel  for  plaintiff  in  error  that,  even 
conceding  the  railway  company  had  a  right  to  make 
charges  for  storage  of  goods,  it  had,  by  operation  of  law. 


no  lien  upon  the  property  itself.  If  we  are  correct  in  the 
conclusion  that  the  defendant  in  error  occupied  the  posi- 
tion of  a  warehouseman,  then,  under  the  laws  of  this  state, 
it  has  a  lien  upon  the  property,  and  can  retain  possession 
thereof  until  it  is  paid.  Section  2928  of  the  Civil  Code 
declares:  "Depositaries  for  hire  are  bound  to  exercise 
ordinary  care  and  diligence,  and  are  liable  as  in  other  cases 
of  bailment  for  'hire;  they  have  a  lien  for  their  hire,  and 
may  retain  possession  until  it  is  paid."  Section  2930  de- 
clares: "A  warehouseman  is  a  depositary  for  hire,  and  is 
bound  only  for  ordinary  diligence,"  etc.  The  right  of  the 
retention  of  goods  by  a  carrier  for  charges  for  freight  and 
storage,  even  when  the  property  is  stored  upon  cars,  was 
virtually  recognized  by  this  court  in  Pennsylvania  Steel 
Co.  vs.  Georgia  Railroad  &  Banking  Co.,  94  Ga.  636,  21  S. 
E.  577.  In  that  case  it  appeared  that  tons  of  rails,  spikes, 
bolts,  etc.,  had  been  shipped  in  car-load  lots,  which  came 
into  the  possession  of  the  defendant  railroad  company  as  the 
last  connecting  line.  From  each  consignment  the  defend- 
ant retained  one  or  two  cars  to  secure  itself  for  the  freight 
and  demurrage,  it  claimed  on  such  consignment,  and  deliv- 
ered to  the  consignee  the  rest  of  the  cars.  It  was  held  in 
that  case  that  payment  of  the  freight  and  storage  must  be 
made  before  the  consignor  can  obtain  possession.  In  Mil- 
ler vs.  Banking  Co.,  88  Ga.  563,  15  S.  E.  316,  18  L.  R.  A. 
323,  this  right  of  a  carrier  to  collect  its  reasonable  charges 
for  storage  in  its  cars  was  clearly  recognized.  In  that 
case  it  seems  the  same  rate  was  charged  by  the  rail- 
road company  as  in  the  case  at  bar,  and  it  was  there 
held  the  fact  that  this  regulation  was  promulgated  by 
a  board  of  persons  representing  a  combination  of  such 
carriers  made  no  difference.  On  page  571,  88  Ga.,  pae^e 
318,  15  S.  E.,  and  page  327,  18  L.  R.  A.,  Simmons,  "j. 
(now  C.  J.),  stated  in  his  opinion  the  following:  "We  do 
not  think  it  material,  as  affecting  the  right  to  make  a  charge 
of  this  character,  that  the  goods  remain  in  cars  instead  of 
being  put  into  a  warehouse."  This  right  of  the  retention  of 
the  property  to  enforce  its  lien  is  recognized  in  Kentucky 
Wagon  Mfg.  Co.  vs.  Ohio  &  M.  Ry.  Co.,  98  Ky.  152,  32  S. 
W.  595,  36  L.  R.  A.  850;  and  also  by  the  following  lan- 
guage in  4  Elliott,  R.  R.  p.  2439,  Section  1567 :  "It  was 
held  in  the  cases  cited  in  the  first  note  to  this  section  that 
a  railroad  company  can  have  no  lien  for  demurrage  charges, 


"5 

but,  as  we  have  seen,  those  cases  deny  in  toto  the  right  to 
charge  for  delay  or  detention  of  cars,  in  the  absence  of  a  con- 
tract, and,  to  that  extent  at  least,  are  contrary  to  the  weight 
of  authority.  In  several  of  the  cases  which  assert  the  right 
to  charge  demurrage,  it  is  expressly  held  that  the  company 
may  have  a  lien  for  such  charge^,  and  in  others  there  are 
intimations  to  the  same  effect." 

Counsel  for  plaintiff  in  error  cite  some  authorities  in 
conflict  with  this  view.  Among  them  attention  is  called  to 
9  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  p.  270,  where  it  is  stated: 
"By  the  weight  of  authority,  a  railroad  company  has  no 
lien  on  goods  shipped  for  demurrage  or  damages  in  the 
nature  of  demurrage  for  delay  in  unloading  the  same,  and 
consequent  detention  of  cars  or  other  property,  unless  a  lien 
is  given  by  contract  or  by  statute."  The  author  cites  a  few- 
cases  in  support  of  the  text,  and  makes  no  reference  to  the 
decided  weight  of  authority  to  the  contrary,  including  the 
decision  of  our  own  court  in  Miller  vs.  Banking  Co.,  88 
Ga.  563,  15  S.  E.  316,  18  L.  R.  A.  323.  Besides,  as  above 
indicated,  we  think  the  statute  of  Georgia  does  give  a  lien 
which  necessarily  follows  upon  the  relation  of  warehouse- 
man that  the  company  in  this  case  sustained  to  the  owner 
of  these  goods. 

8.  Counsel  for  plaintiff  in  error  contend  in  the  motion 
for  a  new  trial,  bill  of  exceptions,  and  also  in  the  argument, 
that  the  Central  had  no  right  to  retain  the  whole  ship- 
ment for  the  payment  of  its  charges,  and  that  the  question 
of  reasonableness  or  unreasonableness  of  so  doing  was  im- 
properly withheld  by  the  court  from  the  jury.  It  was  urged 
that  the  value  of  the  coal  on  one  car  would  have  been  amply 
sufficient  to  have  met  these  charges,  and  that  the  other  three 
should  have  been  delivered  at  the  place  of  destination.  All 
four  cars  were  delivered  under  one  entire  contract,  and  we 
think  Section  2928  of  the  Civil  Code  upon  the  subject  gives 
the  right  to  retain  possession  of  the  entire  property  thus 
stored  until  the  charges  for  such  storage  are  paid.  The 
case  of  Pennsylvania  Steel  Co.  vs.  Georgia  Railroad  & 
Banking  Co.,  94  Ga.  636,  21  S.  E.  577,  is  cited  in  behalf 
of  plaintiff  in  error  as  authority  for  their  contention.  In 
that  case  it  appeared  that  the  railroad  company  did  not 
retain  all  the  cars,  but  only  a  portion  of  them ;  and  it  was 
contended  by  the  Pennsylvania  Steel  Company,  that  each 


u6 

car  constituted  a  separate  shipment,  and  the  amount  due 
on  each  was  readily  ascertainable,  and  that  defendant,  in 
delivering  the  freight,  departed  from  its  general  custom 
requiring  cash  before  delivery.  A  demurrer  to  the  declara- 
tion was  sustained,  which  was  affirmed  by  court.  There 
is  no  indication  whatever  .that  the  railroad  company  did  not 
have  an  equal  right  to  retain  all  the  cars  instead  of  a  por- 
tion thereof.  In  28  Am.  &  Eng.  Enc.  Law,  pp.  663,  664, 
the  author  recognizes,  as  accompanying  the  lien  of  a  ware- 
houseman on  property  stored  with  him,  the  right  to  retain 
possession  of  the  goods  until  satisfaction  of  the  charges  im- 
posed upon  them.  Under  that  text,  a  number  of  authori- 
ties are  cited.  Morgan  vs.  Congdon,  4  N.  Y.  552;  Schmidt 
vs.  Blood,.  24  Am.  Dec.  145;  Barker  vs.  Brown,  138  Mass. 
340.  In  view  of  the  above  principles,  it  is  quite  manifest 
that  the  claim  of  offset  made  by  the  plaintiff  in  error  to  the 
foreclosure  of  this  lien  was  properly  not  submitted  by  the 
court  to  the  jury.  The  demurrer  or  storage  charges  that 
had  been  running  against  the  shipper  in  this  case  could 
have  been  readily  prevented  by  paying  the  freight  charges 
demanded  by  the  carrier,  and  the  unfortunate  position  in 
which  the  shipper  was  placed  by  such  'detention  was  the  re- 
sult of  no  legal  wrong  whatever  done  him  by  the  carrier, 
but  was  caused  by  the  shipper's  failure  to  comply  with  the 
legal  obligations  under  his  contract.  Of  course,  therefore, 
the  shipper  had  no  legal  claim  against  the  company  for  the 
detention  of  his  property. 

9.  The  motion  for  a  new  trial  contains  a  large  number 
of  grounds  not  specifically  set  forth  in  this  opinion.  These 
grounds,  about  35  or  40  in  number,  are  sub-divided,  many 
of  them,  into  distinct  points  of  law  made  thereon,  making 
the  several  charges  of  error  complained  of  amount  in  num- 
ber to  some  80  or  90.  In  the  above  treatment  of  this  case, 
however,  we  think  the  principles  enunciated  cover  every 
point  worthy  of  any  consideration  whatever  involved  in  the 
writ  of  error,  and  those  decided  are  certainly  controlling  in 
this  case.  Applying  these  principles  to  the  testimony  in- 
troduced upon  the  trial,  and  our  conclusion  is  that  the  evi- 
dence demanded  the  verdict.  We  will  take  this  occasion  to 
remark  that,  in  the  investigation  of  the  principles  of  law 
controlling  this  case,  we  have  been  materially  aided,  and 
our  work  greatly  facilitated,  by  the  condensed,  but  thor- 
ough, brief  of  learned  counsel  for  defendant  in  error.  Judg- 
ment affirmed.  All  the  justices  concurring. 


iiy 


SUPREME  COURT  OF  TENNESSEE,   DECEMBER 
TERM,  1900. 


PETER   SWAN   VS.   LOUISVILLE   &   NASHVILLE 
RAILROAD  COMPANY. 


VOL.  20,  A.  &  E.  R.  R.  CASES. 
NEW   SERIES,   P.   446. 


OPINION  BY  WILKES,  J.,  DELIVERED  JANUARY 

12,  1901, 


This  was  a  suit  brought  by  Peter  Swan  against  the 
Louisville  and  Nashville  Railroad  Company  before  a  Jus- 
tice of  the  Peace  to  recover  the  value  of  three  (3)  cars  of 
Bedford  Stone,  which,  it  was  alleged,  the  Louisville  and 
Nashville  Railroad  Company  had  converted  to  its  own  use 
by  refusing  to  deliver  same  upon  the  payment  of  the  freight. 

The  proof  showed  that  the  cars  of  stone  in  question 
were  shipped  from  Bedford,  Ind.,  consigned  to  Peter  Swan, 
Nashville,  Tenn.  The  day  they  arrived  in  Nashville  notice 
was  given  Mr.  Swan  of  their  arrival,  and  he  was  also  noti- 
fied to  call  and  pay  the  freight  thereon  within  forty-eight 
(48)  hours  or  there  would  be  car  service  charge  of  one  dollar 
($1.00)  per  day  per  car  until  the  freight  was  paid.  He  did 
not  call  or  offer  to  pay  the  freight  until  twenty-one  dollars 
($21.00)  car  service  charges  had  accrued,  the  charges  being 
at  the  rate  of  one  dollar  ($1.00)  per  car  per  day  after  forty- 
eight  (48)  hours  free  time  had  expired,  excluding  Sundays 
and  legal  holidays. 

At  the  end  of  this  period  he  paid  the  freight,  but  re- 
fused to  pay  any  car  service  charges.  The  proof  showed 
that  Mr.  Swan  had  a  stone  yard  with  a  railroad  track  laid 
therein,  which  had  been  built  by  the  N.  C.  &  St.  L.  Ry., 
and  which  connected  with  the  tracks  of  the  Louisville  and 
Nashville  Railroad  Company,  but  the  Louisville  and  Nash- 
ville Railroad  Company  did'  not  construct  any  part  of  the 


n8 

side  track  nor  own  any  part  thereof.  Mr.  Swan's  yard 
was  enclosed  by  a  fence,  and  there  was  a  gate  which 
could  be  closed  across  the  track  in  question.  It  had  been 
customary  to  deliver  all  cars  consigned  to  Mr.  Swan  upon 
these  tracks.  The  railroad  company  declined  to  deliver 
these  cars  upon  his  side  track  until  he  paid  the  freight,  be- 
fore the  car  service  charges  accrued,  and  further  declined 
to  put  them  upon  his  track  upon  his  paying  the  freight  after 
the  car  service  had  accrued,  he  refusing  to  pay  the  car  ser- 
vice charge.  He  thereupon  sued  the  railroad  company  for 
the  value  of  the  stone,  with  the  freight  added. 

The  proof  showed  that  the  cars  in  question  were  placed 
by  the  railroad  company  upon  one  of  its  own  side  tracks 
adjacent  to  Mr.  Swan's  yard,  where  they  could  be  conven- 
iently placed  upon  the  tracks  within  his  yard  upon  a  few 
hours'  notice. 

The  bill  of  lading  under  which  the  cars  were  shipped  con- 
tained the  following  clauses: 

"Clause  5 — Property  not  removed  by  the  person  or 
party  entitled  to  receive  it,  within  24  hours 
after  its  arrival  at  destination,  may  be  kept 
in  the  car,  depot  or  place  of  delivery  of  the 
carrier  at  the  sole  risk  of  the  owner  of  said 
property,  or  may  be,  at  the  option  of  the 
carrier,  removed  and  otherwise  stored  at 
the  owner's  risk  and  cost  and  there  held 
subject  to  lien  for  all  freight  and  other 
charges. 

"The  delivering  carrier  may  make  a  reas- 
onable charge  per  day  for  t!he  detention  of 
any  vessel,  or  car,  and  for  the  use  of  the 
track  after  the  car  has  been  held  48  hours 
for  unloading,  and  may  add  such  charge  to 
all  other  charges  hereunder,  and  hold  said 
property  subject  to  a  lien  therefor." 

Clause  10 — "The  owner  or  consignee  shall  pay  the 
freight  at  the  rate  hereon  stated,  and  all 
other  charges  accruing  on  said  property  be- 
fore delivery  and  according  to  the  weights 
as  ascertained  bv  anv  carrier  herein." 


H9 

The  plaintiff  insisted  that  it  was  the  duty  of  the  rail- 
road company  to  place  the  cars  upon  the  side  track  in  Mr. 
Swan's  yard  before  it  could  demand  payment  of  the  freight 
or  make  any  car  service  charge;  and  its  refusal  to  place 
the  cars  upon  the  side  track  in  his  yard  before  payment  of 
the  freight  was  equivalent  to  a  conversion  of  the  stone. 
The  plaintiff  also  contended  that  the  railroad  company  had 
no  right  to  make  any  car  service  charge,  and  that  when 
he  paid  the  freight  he  was  entitled  to  the  stone  without 
payment  of  the  car  service  charge. 

The  defendant  contended  that  it  was  under  no  obliga- 
tion to  place  the  cars  upon  the  side  track  within  Mr.  Swan's 
yard,  the  track  belonging  to  another  railroad  company, 
until  the  freight  had  been  paid;  and  further  that  the  car 
service  charge  was  reasonable  and  legal;  that  the  railroad 
company  had  a  legal  right  to  charge  for  the  detention  of  its 
cars  beyond  a  certain  reasonable  time — 48  hours;  and  that 
the  regulation  itself  was  reasonable  and  should  be  enforced, 
and  that  it  had  a  lien  therefor  upon  the  freight. 

The  Circuit  Court  judge  charged  the  jury  in  substance 
as  follows : 

That  when  the  defendant  company  received  this  freight 
for  transportation,  it  did  so  upon  the  terms  and  conditions 
stipulated  in  these  bills  of  lading. 

"When  it  delivered  it  to  Nashville,  the  point  of  destina- 
tion, that  was  the  termination  of  its  contract,  that  it  was 
not  necessary  for  it,  for  the  completion  of  that  contract,  to 
deliver  it  into  the  yard  of  the  plaintiff  or  upon  the  side  track ; 
but,  before  it  could  charge  this  demurrage,  as  claimed  by 
defendant  in  this  case,  it  must  have  had  the  cars  and  freight 
at  a  convenient  point  where  it  could  have  delivered  them  to 
the  plaintiff  at  a  reasonable  and  convenient  place  for  un- 
loadingj  before  it  could  either  demand  the  freight  due  there- 
on, or  any  demurrage,  and  being  in  that  condition,  prepared 
and  ready  upon  payment  of  its  freight,  and  whatever  demur- 
rage, if  any,  had  accumulated;  in  the  meantime  the  plain- 
tiff was  bound  to  have  received  the  same  and  paid  the  freight 
and  demurrage  upon  it.  Now,  the  question  being,  in  this 
case,  for  you  to  determine,  is,  as  to  whether  or  not  the  de- 
fendant has  received  that  freight,  whether  they  transported 
it  to  the  City  of  Nashville,  and  whether  it  gave  the  plain- 


J20 

tiff  the  required  notice  as  stated  to  you,  and  whether  it  had 
the  cars  there  ready  to  deliver  them  into  the  yards  of  the 
plaintiff,  and  where  it  was  usual  and  customary  for  the  de- 
livering of  freight  for  this  plaintiff  upon  the  payment  of  the 
legal  charges  upon  it,  which,  as  I  stated  to  begin  with, 
was  the  freight  of  so  much,  and  the  demurrage  so  much; 
and  if  the  plaintiff  has  failed  to  receive  it  and  unload  it 
within  the  time  stipulated  within  the  contract  of  bill  of 
lading. 

"Now,  as  stated  before,  the  plaintiff  is  insisting  that  the 
notice  was  not  given;  that  the  cars  were  not  in  condition 
to  have  been  delivered  to  him;  and,  furthermore,  he  insists 
that  the  cars  must  have  been  delivered  within  his  yard  be- 
fore they  could  demand  the  freight,  and  before  any  demur- 
rage could  have  accumulated  on  them  thereafter. 

'The  defendants  say,  on  the  other  hand,  that  after  the 
arrival  of  the  cars  and  freight  with  it,  defendant  had  given 
the  notice  required;  that  the  plaintiff  failed  to  come  and 
pay  the  charges;  to  remove  the  same  or  to  remove  the 
freight ;  and  that  it  had  the  cars  there  ready  and  at  a  con- 
venient time  and  place,  after  demanding  the  freight,  to  have 
switched  the  cars  into  the  yard  of  the  plaintiff:,  which 
was  a  convenient  and  proper  place  for  it,  he  was  not  re- 
quired to  switch  into  the  yard  of  the  plaintiff  until  these 
charges  had  been  paid. 

"The  court  instructs  you  that  if  the  contention  of  the 
defendant  is  sustained  by  the  proof,  that  the  plaintiff  could 
not  recover  in  this  case." 

Under  the  charge  of  the  court  the  jury  found  a  ver- 
dict in  favor  of  the  defendants. 

Plaintiffs  appealed. 

Upon  the  appeal  to  the  Supreme  Court,  the  plaintiff  as- 
signed error  upon  the  charge  of  the  court  below,  claiming 
that  the  charge  was  not  the  law.  The  Supreme  Court  af- 
firmed the  judgment  of  the  court  below,  sustaining  the 
charge  of  the  lower  court  upon  every  point. 

The  points  decided  by  the  Supreme  Court  were  as 
follows : 

First— That  the  railroad  company  has  a  right  to  make 
a  reasonable  charge  for  the  detention  of  its  cars  beyond  a 


121 

certain  reasonable  time  allowed  for  paying  the  freight,  re- 
ceiving and  unloading  the  car. 

Second — That  it  appears  from  the  proof  in  this  case, 
there  being  no  proof  to  the  contrary,  that  one  dollar  ($1.00) 
per  day  per  car  for  the  detention  beyond  48  hours  is  a  rea- 
sonable time. 

Third — That  under  the  contract  set  out  in  the  bill  of 
lading  m  this  case,  the  railroad  company  has  a  lien  for  de- 
murrage or  car  service  charges. 

Fourth — That  the  railroad  company  is  not  bound  to 
deliver  the  cars  upon  the  tracks  in  the  private  premises  of 
the  consignee,  such  tracks  being  owned  by  another  rail- 
road, until  the  freight  has  been  paid;  but  that  it  is  suf- 
ficient if  the  railroad  company  has  the  cars  conveniently 
located  so  that  they  may  be  placed  upon  side  tracks  within 
a  reasonable  time  after  the  freight  and  charges  for  which 
a  lien  may  exist  have  been  paid;  and  that,  therefore,  there 
was  no  conversion,  and  the  defendant  railroad  company 
was  not  liable  for  the  value  of  the  stone. 


STATE  OF  MISSOURI. 
OFFICE  OF  THE  RAILROAD  AND  WAREHOUSE 

COMMISSION. 
CITY   OF  JEFFERSON,  JUNE,   3,  1901. 

IN  THE  MATTER  OF  THE  COMPLAINT  OF 

E.  R.  DARLINGTON  &  COMPANY  VS.  CENTRAL 

CAR  SERVICE  ASSOCIATION  OF 

ST.  LOUIS. 


Hearing  Held  at  St.  Louis,  May  16,  1901. 


Complaint  alleges  that  certain  demurrage  charges  made 
by  defendant  on  cars  held  on  'hold  tracks  of  the  Missouri 
Pacific  Railway  were  illegal. 


122 

The  evidence  taken  shows  that  certain  cars  of  lumber 
consigned  to  complainant  were  placed  on  hold  track  on 
arrival  at  St.  Louis,  and  due  notice  of  such  arrival,  with 
request  for  orders  concerning  their  disposition  was  given 
complainant  in  usual  form,  as  follows: 

"You  are  hereby  notified  that  the  following 
cars  are  now  on  tracks  at  this  station  for  your  un- 
loading or  disposition,  and  that  said  cars  are  sub- 
ject to  a  charge  of  $1.00  per  day  or  fraction  of  a 
day  for  all  time  that  they  are  held  beyond  the  free 
time  allowed  by  the  rules  of  this  Company." 

Section  5  of  Rule  2,  Rules  and  Regulations  of  Central 
Car  Service  Association  provides  as  follows: 

"Cars  for  loading  or  unloading  shall  be  con- 
sidered placed  when  such  cars  are  held  subject  to 
the  orders  of  consignors  or  consignees,  or  held  for 
the  payment  of  freight  charges." 

This  rule  was  approved  by  this  Board  February  16th, 
1900,  in  its  finding  in  the  case  of  the  Brownell  Car  Com- 
pany vs.  Central  Car  Service  Association.  Forty-eight 
hours  "free  time"  is  allowed  after  placing  cars  for  loading 
or  unloading,  after  which  a  demurrage  charge  of  $1.00  per 
day  is  made.  This  charge  also  has  been  approved  by  this 
Board  as  being  reasonable. 

Cars  consigned  to  complainant  having  been  held  await- 
ing orders  beyond  the  free  time  allowed  by  the  Car  Service 
Association  rules,  due  notice  of  arrival  having  been  given, 
demurrage  was  charged  accordingly. 

E.  R.  Darlington  testified  that  he  did  not  know  per- 
sonally that  any  cars  were  held,  but  perhaps  his  employes 
did,  but  they  did  not  understand  that  car  service  was  being 
charged  on  cars  held  beyond  free  time  limit.  The  fact 
that  Darlington  &  Co.  were  ignorant  of  this  rule  is  not  a 
sufficient  plea  for  the  non-payment  of  the  charges.  The 
enforcement  of  the  rule  referred  to  is  absolutely  necessary 
for  the  prompt  transaction  of  the  business  of  the  railroads 
terminating  at  St.  Louis.  If  otherwise,  any  manufacturer 


I23 

or  dealer  could  have  cars  consigned  to  them  held  indefinite- 
ly, awaiting  such  time  as  might  best  suit  their  convenience 
for  delivery  and  unloading.  Upon  the  prompt  delivery  and 
discharge  of  cars  at  destination  depends  in  a  great  'measure 
the  very  existence  of  any  railroad  handling  a  large  traffic, 
and  it  is  imperative  that  proper,  reasonable  rules  regarding 
this  most  important  matter  should  be  made  and  enforced. 
The  rule  referred  to  is  one  of  the  most  important  govern- 
ing the  movement  of  cars  after  arrival  at  St.  Louis,  and 
certainly  has  had  a  very  beneficial  effect  in  improving  car 
service  and  preventing  blockades. 

Mr.  Darlington's  evidence  shows  that  the  private  track 
of  Darlington  &  Co.  has  a  capacity  of  five  to  six  cars,  ac- 
cording to  length.  Evidence  taken  shows  that  by  the  piling 
of  lumber  on  each  side  of  this  track  its  capacity  was  re- 
duced to  three  cars  instead  of  five  or  six. 

Parties  having  private  tracks  upon  which  they  expect 
cars  to  be  placed  for  loading  or  unloading  should  use 
every  effort  to  keep  such  tracks  clear,  and  in  condition  to 
be  used  to  their  full  capacity,  if  occasion  demands,  in  order 
that  the  prompt  movement  of  cars  can  be  assured.  Prompt- 
ness in  delivery  of  cars  by  railroads,  in  accordance  with  the 
orders  of  consignees  and  prompt  discharge  of  cars  after 
receipt,  is  essential  for  the  interest  of  all  parties  concerned. 

In  reference  to  the  decisions  of  the  Inter- State  Com- 
merce Commission  (Nos.  617,  1075,  1076,  1088  and  1078) 
offered  in  evidence  by  Mr.  E.  R.  Darlington,  we  do  not  see 
their  application  in  the  case  under  consideration. 

In  decision  No.  617,  it  is  held  that  the  action  of  de- 
fendant (C.  M.  &  S.  P.  Ry.  Co.)  in  refusing  to  switch  two 
cars  of  coal  to  a  connecting  line  after  payment  of  freight, 
and  the  offer  of  customary  switching  charges,  unless  com- 
plainant promised  in  advance  to  pay  any  demurrage  charges 
Which  might  be  made,  whether  just  or  legally  enforcible, 
was  unjust 

Decision  No.  1075  holds  that  if  demurrage  charges  are 
made  to  commence  before  the  expiration  of  a  reasonable 
time  for  loading  or  unloading,  such  action  might  be  a  vio- 
lation of  provisions  of  Section  1  of  Inter-State  Commerce 
Act. 


124 

Decision  No.  1076  holds  that  the  Inter-State  Com- 
mission may  find  the  time  allowed  for  unloading  or  loading 
unlawful  and  forbid  the  charging  of  demurrage  before  the 
expiration  of  a  reasonable  time. 

Decision  1077  orders  that  a  defendant  company  cease 
and  desist  from  charging  demurrage  until  the  expiration  of 
a  reasonable  time  for  unloading  after  cars  have  been 
placed  for  unloading,  and  notice  of  such  placing  given  to 
consignee. 

Decision  1078  is  simply  explanatory  of  Section  1  of 
Inter-State  Commerce  Commission  Act. 

An  order  of  this  Commission  made  January  8,  1896, 
provides  that  cars  arriving  at  destination  on  which  there  are 
no  previous  or  general  orders  as  regards  delivery  must  be 
placed  on  hold  track  awaiting  orders. 

In  the  case  under  consideration  the  cars  on  which  de- 
murrage was  charged  were  placed  on  hold  tracks  for  orders, 
and  Darlington  &  Co.  were  duly  and  promptly  notified  of 
such  placing.  After  a  reasonable  time  had  expired,  subse- 
quent to  notice  given,  no  orders  having  been  received,  de- 
murrage charges  were  made  in  accordance  with  the  ap- 
proved rules  of  the  Car  Service  Association.  There  being 
nothing  in  the  evidence  heard  in  the  matter  showing  any 
injustice  in  the  demurrage  charges  claimed  by  the  Car  Ser- 
vice Association,  we  find  that  the  demurrage  charges  of 
seventeen  dollars  against  E.  R.  Darlington  &  Co.,  as  made 
by  the  said  Association,  as  shown  by  statements  in  evi- 
dence, are  equitable  and  proper,  and  the  case  is,  therefore, 
dismissed. 


By  order  of  the  Board  of  R.  R.  &  W.  Commissioners. 
(Signed)     JAMES  HARDING,  Secretary. 


125 


SUPERIOR  COURT,  CATAWBA  COUNTY,  NORTH 
CAROLINA,  JULY,  1901. 


LATTA-MARTIN  PUMP  COMPANY 

VS. 
SOUTHERN  RAILWAY  COMPANY. 


UNREPORTED. 


Heard  Before  Judge  Council. 

This  case  involved  question  of  the  right  of  carriers  to 
enforce  warehouse  charges  for  storage  of  freight.  Ship- 
ment of  pump  cylinders  arrived  Hickory,  N.  C,  June  27th, 
1900,  consigned  to  plaintiffs;  notice  was  given  on  arrival 
of  shipment,  which  was  acknowledged,  but  for  business 
reasons  plaintiffs  failed  to  remove  said  shipment  until  after 
forty-eight  hours  had  expired,  computed  from  noon  day  fol- 
lowing date  of  arrival. 

They  demanded  delivery  without  payment  of  storage 
charges,  and  tendered  payment  of  freight  charges  only; 
delivery  was  withheld  and  shipment  replevined.  Case  was 
heard  before  trial  justice,  who  decided  in  favor  of  plaintiffs, 
and  defendants  appealed.  Case  was  called  in  Superior 
Court,  July  Term,  1901. 

Plaintiffs  contended  that  defendants  unlawfully  detained 
property  referred  to  in  complaint  for  storage  charges. 

Defendant  admitted  possession  and  detention  of  the 
property,  but  alleged  that  detention  was  lawful,  and  that 
it  was  subject  to  storage  or  warehouse  charges  under  its 
rules. 

Under  the  evidence  the  Court  charged  the  jury  that  the 
possession  was  lawful,  that  the  property  was  subject  to 
the  charges  referred  to,  and  that  said  rules  were  reasonable. 

Verdict  for  the   defendant.     Judgment  upon  verdict. 


126 


SUPREME  COURT  OF  PENNSYLVANIA. 
NO.  142,  JANUARY,  1900. 


201  PA.  St.  P.  624. 
SUP.  51,  ATL.,  313. 


PENNSYLVANIA  RAILROAD  COMPANY 

VS. 
THE  MIDVALE  STEEL  COMPANY. 


Appeal  by  Plaintiff  from  Judgment  of  Court  of  Common 
Pleas  No.  4,  Philadelphia  County. 

Opinion  by  Dean,  Judge,  February  24th,  1902. 

The  plaintiff,  as  a  common  carrier  corporation,  before 
1893,  adopted  by  its  proper  officers  this  rule : 

"A  charge  of  one  dollar  shall  be  imposed  for  car  ser- 
vice for  and  upon  each  car  carried  over  any  portion  of  its 
line  of  railroad  not  unloaded  by  the  consignee  within  forty- 
eight  hours  from  the  time  said  car  arrived  at  the  destina- 
tion thereof,  ready  for  delivery  to  such  consignee,  for  each 
day  or  part  of  day  after  said  forty-eight  hours,  not  includ- 
ing Sundays  and  legal  holidays,  during  which  said  car 
should  remain  unloaded,  the  said  charge  being  payable  by 
the  consignee  or  person  receiving  the  car." 

From  July,  1893,  up  to  December,  1898,  the  defendant, 
which  is  a  large  iron  and  steel  manufacturer  at  Nicetown, 
in  Philadelphia  County,  received  from  plaintiff,  consigned 
to  the  Steel  Company,  about  fourteen  thousand  cars  laden 
with  iron,  coal  and  other  products  used  in  its  manufactur- 
ing business.  A  large  number  of  these  cars  were  detained 
beyond  the  forty-eight  hours,  some  for  many  days,  before 
being  unloaded.  Plaintiff  charged  for  the  delay  as  pro- 
vided by  the  rule  quoted,  and  presented  monthly  bills  for 
the  same  to  defendant,  which  it  refused  to  pay.  In  an  affi- 
davit of  defense  it  denied  the  right  to  make  the  charge,  and 
consequently  its  liability  to  pay.  Plaintiff  then  took  a  rule 


127 

to  show  cause  why  judgment  should  not  be  entered  for 
want  of  a  sufficient  affidavit  of  defense.  The  aggregate  of 
the  charges  within  the  years  named  was  $4,048.  The 
learned  President  Judge  Arnold,  of  the  Court  below,  in 
his  opinion  discharging  the  rule,  says : 

"Conceding  that  a  carrier  may  charge  a  consignee  a 
fixed  rate  in  the  nature  of  demurrage  for  the  detention  of 
its  cars  beyond  a  reasonable  time  for  discharging  their  car- 
goes, and  that  the  rate  claimed  in  the  present  suit  is  a  rea- 
sonable rate,  yet  there  is  sufficient  denial  of  the  facts  upon 
which  the  plaintiff  bases  its  claim  to  prevent  the  entry  of  a 
summary  judgment,  and  therefore  we  discharge  the  rule 
for  judgment  for  want  of  a  sufficient  affidavit  of  defense." 

From  this  decree  plaintiff  brings  this  appeal,  arguing 
that  the  Court  erred  in  refusing  to  make  the  rule  absolute. 

The  plaintiff  has  an  unquestioned  right  as  a  common 
carrier  to  make  reasonable  rules  to  speed  the  unloading  of 
its  cars;  cars  are  for  the  transportation  of  freight,  not  for 
its  storage.  A  rule  on  its  face  may  apparently  be  reason- 
able, either  as  to  time  allowed  for  unloading,  or  as  to  the 
extent  of  the  penalty  by  which  it  is  sought  to  enforce  a 
reasonable  time-limit;  or  the  reasonableness  of  the  rule 
may  be  doubtful;  in  either  of  which  cases  the  evidence 
would  be  for  the  jury.  But  no  such  question  arises  here, 
for  the  affidavit  does  not  deny  the  reasonableness  of  this 
rule  as  applicable  to  others ;  it  only  denies,  on  other 
grounds,  the  right  of  plaintiff  to  apply  it  to  these  ship- 
ments. Where  the  rule  is  manifestly  a  reasonable  one,  as 
this  one  is,  both  as  to  time  and  charge,  the  court  will  not 
take  up  time  by  instructing  a  jury  to  find  the  facts,  any 
more  than  it  would  instruct  a  jury,  on  undisputed  facts, 
to  find  that  a  collecting  bank  had  protested  a  negotiable 
note  within  a  reasonable  time  after  non-payment.  Al- 
though the  question  has  not  been  heretofore  directly 
passed  upon  by  this  Court,  it  has  been  decided  in  several 
of  the  states.  '(Miller  vs.  Mansfield,  112  Mass.  260;  Nor- 
folk Railroad  Co.  vs.  Adams,  90  Va.  393 ;  Wagon  Co.  vs. 
Ohio  Railway  Co.,  98  Ky.  152,  and  other  cases.) 

As  before  noticed,  with  the  plaintiff's  statement  is  filed 
a  complete  copy  of  its  account — giving  car  initials,  num- 
ber,, contents,  exact  hour  of  arrival,  date  of  release,  num- 
ber of  days  detained  and  amount  of  charge.  None  of  the 


128 

cars  charged  for  were  kept  less  than  three  days,  and  many 
of  them  from  seven  to  twenty-one  days.  So  far  as  it  was 
in  tne  power  of  a  railroad  company  to  give  notice  to  a  con- 
signee of  every  material  fact,  the  defendant  got  this  notice 
from  plaintiff  when  the  bills  were  rendered.  Wherein  does 
the  affidavit  make  an  issue  of  fact  which  ought  to  go  to  a 
jury  ?  It  sets  out  that  the  demurrage  rule  is  not  applicable 
to  it  because  large  numbers  of  the  cars  consigned  to  it 
were  unloaded  promptly,  but  being  re-loaded  as  outgoing 
shipments  the  detention  caused  by  re-loading  is  embraced 
in  a  charge  of  delay  in  unloading.  The  plaintiff  having 
sworn  to  its  detailed  statement,  having  positively  averred 
the  number,  date  of  arrival  and  date  of  release  as  to  every 
car,  it  was  the  duty  of  the  defendant  to  meet  this  charge 
by  specifying  the  cars  detained  for  other  reasons  than  by 
neglect  to  unload.  The  least  error  in  plaintiff's  account, 
whether  overcharge  as  to  delay,  mistake  in  car,  or  consign- 
ment to  defendant,  when  consigned  to  some  other,  could 
easily  have  been  detected  and  exposed  in  the  affidavit  of  de- 
fense; every  delay  occasioned,  not  by  unloading  but  by  re- 
loading, could  have  been  particularly  averred.  We  do  not 
say  that  if  defendant  had  been  unable  to  do  this,  either 
by  neglect  to  keep  accounts  or  by  their  loss  or  destruction, 
that  the  Court  below  might  not,  under  the  circumstances, 
have  refrained  from  entering  judgment.  But  the  defend- 
ant makes  no  averment  of  inability  to  produce  accounts 
which  will  specify  the  alleged  errors  in  plaintiff's  account; 
on  the  contrary,  it  avers  that  "the  defendant  will  produce 
at  the  trial  its  own  records,  carefully  prepared  under  a  sys- 
tem adapted  to  prevent  error,  for  the  purpose  of  proving 
that  the  plaintiff's  records  are  inadequate  as  a  basis  of 
claim."  It  thus  asserts  that  it  has  in  its  possession  accur- 
ate accounts,  which  at  the  trial  in  Court  before  a  jury  will 
defeat  plaintiff's  claim  in  part  at  least;  yet,  with  seeming 
caution,  it  refrains  from  specifying  the  particulars  then  be- 
fore it.  This  defeats  the  very  purpose  of  the  affidavit  of 
defense  law.  Its  object  was  to  hasten  final  judgment  by 
setting  out  in  the  affidavit  the  groundlessness  of  the  whole 
or  part  of  plaintiff's  claim ;  or  by  averring  that  it  had  been 
paid  and  how,  in  whole  or  in  part.  The  parties  might  then, 
in  that  early  stage  of  the  proceedings  be  brought  together; 
the  plaintiff  might  abandon  his  claim  in  whole  or  in  part. 
This  affidavit  specifies  nothing  in  answer  to  plaintiff's  full 
and  complete  specifications. 


I29 

Every  averment  is  an  inference  from  a  "carefully  pre- 
pared" system  of  bookkeeping  of  its  own,  without  a  copy 
of  the  particulars  which  would  demonstrate  the  errors  of 
plaintiff's  charges.  'The  affidavit  should  state  specifically 
and  at  length  the  nature  and  character  of  the  defense  re- 
lied on."  jBryer  vs.  Harrison,  37  Pa.  233.  "The  spirit  of 
the  affidavit  of  defense  law  abhors  evasion  and  equivoca- 
tion, and  punishes  them  by  entering  judgment."  (Endlich 
on  Affidavits  of  Defense,  Sec.  377 ;  Woods  vs.  Watkins,  40 
Pa.  458.) 

The  further  objection  to  plaintiff's  claim  is,  that  it  does 
not  aver  expressly  or  impliedly  that  these  parties  ever  be- 
came parties  to  any  contract  for  payment  of  demurrage  on 
detained  cars.  But  they  were  parties  to  the  contract  of 
shipment  over  plaintiff's  railroad,  and  this  is  averred;  and 
then,  further,  it  is  averred  that  since  the  demurrage  rule 
was  adopted  it  has  formed  part  of  the  contract  of  ship- 
ment. This  is  sufficient  averment  of  the  implied  contract. 
As  a  consignee  of  goods  over  plaintiff's  railroad,  it  im- 
pliedly contracted  to  submit  to  all  reasonable  rules  for  the 
regulation  of  shipments.  That  the  shipper  was  not  con- 
sulted in  framing  the  rules  does  not  affect  their  validity. 
(Wagon  Co.  vs.  Ohio  Railway  Co.,  supra.)  There  is  no 
duty  on  a  common  carrier  to  consult  either  its  shippers  or 
consignees  as  to  the  wisdom  of  its  rates  of  freight  for  car- 
rying or  rules  for  demurrage;  as  to  the  one,  it  cannot  ex- 
ceed a  lawful  rate ;  as  to  the  other,  it  cannot  exceed  a  rea- 
sonable charge.  Within  these  bounds,  it  is  presumed,  in 
the  interest  of  its  stockholders  and  the  public,  to  properly 
conduct  its  own  business.  The  defendant  further  avers  in 
its  affidavit  that  "prior  to  1893,  or  any  time  subsequent 
thereto,"  it  had  no  knowledge  that  plaintiff  had  estab- 
lished a  rule  relating  to  the  demurrage  charges  set  forth  in 
its  statement,  and  that  no  notice  of  such  rule  was  ever  com- 
municated prior  to  the  bringing  of  this  suit;  but  then  it 
says :  "At  various  times  during  the  year  1893,  and  subse- 
quently, bills  have  been  rendered  to  the  defendant  by  plain- 
tiff for  demurrage  charges ;  but  said  bills  did  not  contain 
notice  of  any  regulation  or  rule  on  which  said  charges 
were  or  could  be  based,  nor  were  the  charges  in  said  bills 
consistent  with  the  terms  of  the  regulations  upon  which 
the  plaintiff  has  declared."  This  is  inconsistent  and  eva- 
sive both  in  language  and  substance.  That  plaintiff  did 
adopt  such  rule  is  clearly  shown  by  its  uniform  charges. 


1 3o 

It  was  not  bound  to  serve  a  verbatim  copy  of  the  rule  on 
defendant;  that  could  have  shown  nothing  so  specifically 
as  the  charge,  which  plainly  says  what  detention  is  allowed, 
what  excess  is  charged,  on  what  car.  and  on  what  goods. 
And  that  defendant  had  full  knowledge  is  shown  by  its  own 
admission  that  bills  for  violation  of  the  rule  were  regularly 
rendered.  We  think  this  affidavit  falls  short  of  what  the 
law  calls  sufficient.  It  raises  no  issue  of  fact  calling  for 
the  intervention  of  a  jury,  and  the  law  is  clearly  with  the 
plaintiff. 

Therefore  the  decree  discharging  the  rule  is  reversed, 
and  the  record  is  remitted  to  the  Court  below  with  direc- 
tions to  enter  judgment  for  plaintiff,  unless  other  legal  or 
equitable  cause  be  shown  to  the  Court  below  why  such 
judgment  should  not  be  entered. 


ST.  LOUIS  COURT  OF  APPEALS. 
OCTOBER  TERM,  1902. 


72  S.  W.  R,  122. 

EVANS  R.  DARLINGTON,  ET.  AL.,  Respondents. 

VS. 
THE  MISSOURI  PACIFIC  RAILWAY  CO.,  Appellant. 


No.  8617.     Appeal  from  Circuit  Court,  City  of  St.  Louis. 
Hon.  Warwick  Hough,  Presiding. 


STATEMENT. 

'The  plaintiffs  claimed  that  on  or  about  December 
16th,  1901,  the  defendant,  with  force  and  arms,  without 
leave,  wrongfully  seized,  took  and  carried  away  certain  of 
the  goods  and  chattels  of  plaintiffs  and  converted  the  same 
to  its  own  use  against  the  peace  of  the  State  of  Missouri 
and  to  the  actual  damage  of  plaintiffs  in  the  sum  of  seven 
hundred  dollars ;  that  said  taking  was  wrongful,  by  force, 
malicious  and  oppressive." 


It  was  shown  that  the  plaintiff  was  a  lumber  dealer, 
receiving  freight  on  the  siding  of  the  Merchants'  and 
Manufacturers'  Railroad  Warehouse  Company,  they  hav- 
ing leased  from  said  company  the  part  of  track  that  passed 
through  their  ground. 

It  was  shown  by  the  defendant  that  they  had  paid  for 
the  labor  in  building  the  track  and  also  that  they  owned 
the  approaches  to  the  siding.  That  is,  they  owned  the  rail 
where  it  was  on  the  right-of-way  of  the  railroad  and  where 
it  connected  at  each  end  with  the  railroad. 

On  December  16th,  the  plaintiff  having  previously 
paid  the  freight  charges  at  the  agent's  office,  the  cars  were 
placed  on  the  siding  by  the  Missouri  Pacific  employes  and 
remained  on  the  siding  on  December  17th  and  18th,  which 
was  the  free  time  allowed  and  were  still  on  the  track  on 
December  19th,  and  car  service  having  accrued  the  em- 
ploye of  the  railroad  demanded  payment  of  $1.00  for  each 
car,  total  $2.00,  which  claimant  refused  to  pay. 

First — Because  the  delivery  was  complete  and  the  rail- 
road had  no  right  to  take  the  lading,  and  because  inclem- 
ent weather  prevented  the  unloading  of  the  lumber  from 
the  car. 

Payment  having  been  refused,  Missouri  Pacific, 
through  its  employes,  removed  the  car  from  the  siding  and 
unloaded  the  lumber  in  their  warehouse,  holding  the  lum- 
ber for  the  car  service  charges. 

In  the  Circuit  Court  the  question  of  the  legality  of  the 
car  service  charge  was  not  raised. 

The  judge  allowing  consideration  only  as  to  the  re- 
moval of  the  car;  that  is:  "That  it  was  unlawful,  wrong- 
ful, to  forcibly  take  and  carry  away  the  property  of  the 
plaintiff,  provided  the  evidence  showed  that  the  plaintiff 
had  paid  the  freight  charges  to  the  defendant  and  had  paid 
all  other  charges  due  up  to  the  time  of  the  placing  of  the 
cars,  even  if  it  was  also  found  that  car  service,  or  demur- 
rage as  it  is  sometimes  called,  had  accrued  after  delivery." 

His  instructions  were  for  the  value  of  the  lumber  and 
for  punitive  damages. 

The  court  overruled  the  instructions  of  the  defendant, 
who  claimed  authority  under  the  promulgated  car  service 
rules  to  charge  demurrage  or  storage  after  the  expiration 


I32 

of  the  free  time,  and  that  payment  having  been  refused  for 
said  demurrage  or  storage,  that  the  right  to  remove  the 
cars  from  the  switch  remained  with  the  defendant. 

The  jury  returned  a  verdict  seven  hundred  dollars 
actual  damages,  five  hundred  dollars  punitive  damages. 

The  defendant  appealed  to  the  St.  Louis  Court  of  Ap- 
peals with  an  exhaustive  brief  covering  all  the  later  de- 
cisions of  the  courts  in  Georgia,  Kentucky,  Massachusetts, 
Missouri,  Virginia,  etc.,  and  to  rulings  of  the  Kansas  Rail- 
road Commissioners,  Iowa  Railroad  Commissioners,  and 
Missouri  Railroad  Commissioners. 

It  is  the  opinion  of  the  court,  C.  C.  Bland,  Judge, 
"That  the  defendant  had  at  least  a  license  to  move  its  en- 
gines upon  the  siding  and  that  it  never  parted  with  its  pos- 
session and  control  of  the  cars,  as  the  switch  was  put  in 
for  the  profit  and  convenience  of  the  tenants  of  the  M.  and 
M.  R.  R.  Warehouse  Company,  and  also  for  the  profit  of 
the  defendant  railroad  company  and  partly  at  its  expense, 
and  it  could  set  in  and  take  cars  off  the  track  consigned  to 
the  lessee  or  to  the  M.  and  M.  Warehouse  Company." 

Baker  vs.  Railroad,  57  Mo.  1.  c.,  272. 

Dickson  vs.  Railroad,  67  S.  W.,  642. 

Chiles  vs.  Wallace,  83  Mo.,  85. 

Gibson  vs.  St.  L.  Agricultural  &  Mechanics'  Ass'n., 

33  Mo.  App.  (St.  L.),  165. 

McAllister  vs.  Walker,  69  Mo.  .App-  (St.  L.),  476. 
House  vs.  Montgomery,  19  Mo.  App.  (K.  C.),  170. 
Cook  vs.  Prigden,  Stapler  &  Dunn,  45  Ga.,  331. 
Kirk  vs.  Hamilton,  102  U.  S.,  68. 
Risien  vs.  Brown,  73  Texas,  135. 
Campbell  vs.  Railroad,  110  Ind.,  490. 
The  Evansville  &  Terre  Haute  R.  R.,  et.  al.,  vs. 

Nye,  113  Ind.,  223. 
Garrett  vs.  Bishop,  27  Oregon,  349. 

"Second — The  cars  "were  switched  on  plaintiff's  track 
to  be  unloaded.  The  plaintiffs,  to  accomplish  this  purpose, 
were,  in  a  sense,  in  possession  of  both  cars  and  contents, 
but  the  defendant  did  not  lose  its  dominion  over  the  cars 
or  the  lumber  so  long-  as  the  lumber  remained  in  the  cars. 


133 

"It  retains  the  right  to  re-possess  itself  of  the  cars 
after  they  were  unloaded  and  to  re-possess  itself  of  both 
cars  and  the  lumber  remaining  in  them  for  the  purpose  of 
enforcing  any  carrier's  lien  it  may  have  had  on  the  lumber 
existing  when  the  cars  were  placed  or  any  common  law 
lien  acquired  after  the  cars  were  placed  in  the  plaintiff's 
yards. 

"It  appears  from  the  evidence  that  the  defendant  had 
knowledge  of  the  existence  of  the  car  service  rules.  There 
was  abundant  evidence  that  plaintiffs  impliedly  agreed  to 
be  bound  by  these  service  rules.  But,  independent  of  any 
express  or  implied  contract  of  plaintiffs  to  be  bound  by  the 
rules,  the  modern  doctrine  in  this  country  is  that  the  right 
to  demurrage,  in  such  circumstances,  exists  independent 
of  contract  or  statute.  Section  1115,  R.  S.  1899. 

"The  opinion  then  quotes  from  opinion  of  Judge 
Toney,  Chancellor,  before  whom  the  Kentucky  Wagon 
Manufacturing  Company  case  was  first  heard,  as  present- 
ing a  sound  and*  logical  demonstration  of  the  necessity 
and  reasonableness  of  the  rule. 

"Without  the  right  of  making  and  enforcing  reason- 
able rules  and  regulations  as  to  the  delivery  of  freight  and 
the  detention  of  their  cars  by  consignees,  railroads  would 
be  at  the  mercy  of  individual  shippers.  Individual  con- 
venience should  be  subordinate  to  the  public  good,  which 
demands  expedition,  regularity,  uniformity,  safety  and  fa- 
cility in  the  movement  of  the  freight,  of  the  country  which 
must  of  necessity  be  materially  obstructed  if  individual 
consignees  are  allowed,  without  let  or  hindrance,  to  con- 
vert freight  cars  on  their  arrival  with  cargoes  of  freight, 
upon  their  side  tracks,  into  warehouses  for  the  storage  of 
freight  at  the  suggestion  of  their  convenience  or  interest." 

Hutchinson  is  quoted  as  follows : 

"If  the  carrier  had  agreed  to  carry  the  goods  to  their 
destination  and  there  deliver  them  within  the  prescribed 
time,  he  will  be  held  to  a  strict  performance  of  his  contract, 
and  no  temporary  obstruction  or  even  absolute  impossi- 
bility will  be  a  defense  for  failure  to  comply  with  the  agree- 
ment." 

Hutchinson  on  Contracts,  Sec.  317. 


134 

In  Harrison  vs.  Mo.  Pac.  R.  R.  Co.,  74  Mo.,  1.  c.,  371, 
the  Supreme  Court,  speaking  through  Norton,  Justice, 
said: 

"Where  a  party  by  contract  agrees  to  do  a  prescribed 
thing  in  a  prescribed  time,  he  is  liable  for  non-performance 
of  the  contract,  notwithstanding  the  fact  that  his  non-ful- 
fillment of  the  contract  was  occasioned  by  inevitable  and 
unavoidable  accident." 

"To  the  same  effect  is 

Galvin  vs.  Railroad,  21  M.  A.  (K.  C.),  273. 
Miller  vs.  Railroad,  62  M.  A.  (K.  C.),  252. 

Waters  vs.  Richmond  &  Danville  R.  Co.,  16  L.  R. 
A.,  835. 

Atkinson  vs.  Ritchie,  10  East,  530. 
Wareham  Back  vs.  Burt,  87  Mass.,  113. 
Nelson  vs.  Odiorne,  45  N.  Y.,  48&. 
Cutliff  vs.  McAnally,  88  Ala.,  507. 
Cassaday  &  Dunn  vs.  Clarke,  7  Ark.,  123. 

Ward  vs.  The  Hudson  River  Bldg  Co.,  125  X.  Y., 
230. 

"There  are  numerous  other  cases  in  support  of  this 
doctrine. 

"The  cases  which  seemingly  announce  a  contrary  doc- 
trine will  be  found  to  be  cases  involving  obligations  where 
the  thing  to  be  done  is  one  of  duty  and  not  of  private  con- 
tract; as  in  Ballentine  vs.  Mo.  R.  R.,  40  Mo.,  491;  where 
it  was  held  a  carrier  was  excused  for  failing  to  deliver 
goods  in  a  reasonable  time  on  account  of  delays  occa- 
sioned by  an  extraordinary  snow  storm. 

"Our  conclusion  is  that,  under  the  pleadings  and  the 
evidence,  the  defendant  was  not  guilty  of  trespass;  that  it 
had  a  right  to  take  possession  of  the  car  shipped  from  Ore- 
gon, and  to  store  the  lumber  remaining  in  the  car  until  its 
demurrage  charges  were  paid,  but  that  it  had  no  right  to 
take  the  car  and  lumber  therein  shipped  from  Chippewa 
Falls,  the  time  agreed  upon  in  which  it  might  be  removed 
not  having  expired,  and  that  its  taking  and  retention  of  the 


135 

lumber  was  a  conversion  thereof  to  its  own  use  and  that 
plaintiffs,  having  paid  the  freight,  are  entitled  to  recover 
the  market  value  of  that  lumber  at  St.  Louis  on  the  day  it 
was  taken  by  the  defendant. 

"The  judgment  is  reversed,  and  the  cause  remanded. 

"Barclay  and  Goode,  JJ.,  concur;  the  former  concurs 
in  the  result.  "C.  C.  BLAND." 

Note. — In  the  bill  of  lading  of  the  Chippewa  Falls  car, 
as  exhibited,  the  free  time  allowed  was  72  hours.  Mis- 
souri Pacific  removed  car  from  the  siding  before  the  ex- 
piration of  the  72  hours. 


UNITED  STATES  TREASURY  DECISION. 
(24431.) 


LIEN. 

A  lien  for  demurrage  or  car  detention,  where  it  exists 
is  embraced  by  Section  2981,  Revised  Statutes,  as  amended 
by  Act  of  May  21,  1896,  under  the  provision  therein  for 
"charges." 

Washington,  D.  C. 
Treasury  Department,  May  16,  1903. 

Gentlemen : 

The  department  duly  received  your  letters  of  the  7th 
ultimo  and  13th  instant,  wherein  you  request  to  be  in- 
formed whether  a  lien  against  merchandise  for  car  service 
or  demurrage  accruing  after  arrival  of  goods  at  destina- 
tion, and  while  such  goods  are  in  customs  custody,  may  be 
lawfully  filed. 

I  have  to  inform  you  that  the  matter  was  referred  to 
the  Solicitor  of  the  Treasury  for  an  expression  of  his  views 
on  the  subject,  and  that  in  a  letter  dated  the  llth  instant 
(copy  inclosed)  he  states  that,  in  his  opinion,  a  lien  for  de- 


'36 

murrage  or  car  detention,  where  it  exists,  is  embraced  by 
Revised  Statutes  (Sec.  2981)  as  amended  by  the  Act  of 
May  21,  1896,  under  the  provision  therein  for  "charges." 

Respectfully, 

(3181)  LESLIE  M,  SHAW,  Secretary. 

Edward  Frohlich  Glass  Company,  Detroit,  Mich. 


OPINION  OF  THE  SOLICITOR  OF  THE  TREASURY. 

Department  of  Justice, 
Office  of  the  Solicitor  of  the  Treasury, 
Washington,  D.  C  .,  May  11,  1903. 

Sir :  Assistant  Secretary  Armstrong,  by  reference  of 
the  5th  instant,  indorsed  on  a  communication  from  the 
Edward  Frohlich  Glass  Company,  of  Detroit,  Mich.,  re- 
quests my  opinion  upon  the  question  "whether  a  lien 
against  merchandise  for  car  service  or  demurrage  accru- 
ing after  arrival  of  goods  at  destination,  and  while  such 
goods  are  in  customs  custody,  may  be  lawfully  filed." 

It  does  not  appear  whether  the  bill  of  lading  in  this 
case  provided  that  the  carrier  should  have  a  lien  on  the 
goods  for  demurrage. 

There  is  a  conflict  of  authority  upon  the  question 
whether  the  law  of  demurrage  applies  to  cases  of  car  de- 
tention, and  whether  a  lien  for  demurrage  can  be  claimed 
where  it  is  not  provided  for  in  the  contract  between  the 
carrier  and  the  shipper.  (9  Am.  and  Eng.  Encyc.  of  L., 
2d  ed.,  p.  262;  Miller  vs.  Georgia  Railroad  Company,  88 
Ga.,  563 ;  Chicago,  etc.,  Railroad  Company  vs.  Jenkins,  103 
111.,  588.)  I  do  not  consider  it  necessary  to  determine  what 
may  be  the  weight  of  authority  upon  these  questions,  for, 
assuming  that  a  railroad  company  may  lawfully  claim  such 
a  lien,  either  under  the  law  merchant  or  by  virtue  of  its 
special  contract  with  the  shipper,  and  that  such  a  lien  ex- 
ists in  the  particular  case  now  under  consideration,  the 
Customs  Regulations  of  1899  (Art.  431)  appear  to  deny  to 


the  company  the  right  to  assert  such  lien  against  goods  in 
customs  custody,  under  Revised  Statutes  (Sec.  2981)  as 
amended  by  the  Act  of  May  21,  189G. 

The  provision  of  that  statute,  so  far  as  pertinent  to  the 
present  inquiry,  is  as  follows : 

"That  whenever  the  collector  of  the  port  of  entry,  or 
other  proper  officer  of  the  customs  shall  be  duly  notified  in 
writing  of  the  existence  of  a  lien  for  freight  charges,  or 
contributions  in  general  average  he  shall"  *  *  * 

The  application  of  the  words  "freight"  and  "charges" 
as  here  used,  is  thus  defined  by  Article  431  of  the  Customs 
Regulations  of  1899 : 

"The  freight  which  is  specified  in  the  above  quoted 
Act  is  held  to  be  the  freight  charged  for  the  ocean  trans- 
portation of  the  goods  and  the  inland  freight  charged  for 
delivering  to  an  interior  port  goods  covered  by  through 
bills  of  lading  for  such  ports ;  the  'charges'  specified  therein 
are  the  charges  incident  to  the  shipment  of  the  goods 
abroad,  together  with  any  charge  assumed  by  the  claimant 
of  the  lien  in  forwarding  the  same  to  the  port  of  destina- 
tion, and  are  not  other  charges  accruing  after  the  arrival 
of  the  goods  in  this  country." 

It  may  be  that  demurrage  for  car  detention  is  properly 
a  part  of  the  "freight"  referred  to  in  the  statute  and  the 
regulation,  as  there  are  respectable  authorities  for  the  pro- 
position that  demurrage  is  "extended  freight"  or  compen- 
sation for  the  earnings  improperly  caused  to  be  lost. 
(Sprague  vs.  West,  1  Abb.  Adm.,  548;  Donaldson  vs.  Mc- 
Dowell, 1  Holmes,  290,.  292;  the  J.  E.  Owen  vs.  65,000 
Bushels  of  Corn,  54  Fed.  Rep.,  185.)  But  this  I  need  not 
determine,  as  I  am  clearly  of  the  opinion  that  a  lien  for  de- 
murrage or  for  car  detention,  assuming  such  a  lien  to  exist 
in  the  present  case,  is  a  lien  for  "charges"  within  the  mean- 
ing of  the  amendment  of  May  21,  1896. 

If  by  the  language  of  Article  431  of  the  regulations  of 
1899  "other  charges  accruing  after  the  arrival  of  the  goods 
in  this  country"  it  is  intended  to  exclude  from  the  benefits 
of  the  Act  an  admitted  lien  in  favor  of  the  carrier  for  car 
detention  accruing  while  the  goods  are  in  customs  custody, 
I  am  of  the  opinion  that  the  regulation  is,  to  that  extent, 
unwarranted  by  law.  The  statute  plainly  recognizes  the 


138 

fact  that  there  may  be  liabilities  other  than  freight  on  the 
part  of  the  shipper  or  consignee  to  the  carrier,  for  which 
the  latter  is  entitled  to  a  lien  on  the  goods,  and  it  is  this 
lien — a  lien  for  "charges" — which  the  statute  is  designed 
to  protect.  I  do  not  perceive  upon  what  principle,  or  by 
what  authority,  the  Treasury  Department  limits  the  appli- 
cation of  the  "lien  for  *  *  *  charges"  mentioned  in 
the  statute  to  charges  accruing  before  the  arrival  of  the 
goods  in  this  country.  If  the  carrier  has  a  lien  on  the 
goods  for  his  protection,  it  is  of  no  consequence  when 
the  lien  accrued.  The  statute  was  enacted  to  enforce  the 
plainest  sort  of  an  equity,  namely,  that  the  right  of  the 
carrier  to  look  to  the  goods  for  his  protection  should  not 
be  defeated  by  the  loss  of  his  control  over  the  goods  while 
in  the  customs  custody. 

The  extension  of  the  benefits  of  the  Act  to  a  lien  for 
charges  first  occurs  in  the  amendment  of  May  21,  1896. 
Shortly  thereafter  the  Treasury  Department  promulgated 
its  construction  of  the  Act  now  embodied  in  Article  431  of 
the  Regulations  of  1899.  (T.  D.  17444,  October  2,.  1896.) 
That  construction  does  not  appear  to  have  been  founded 
upon  any  decision  of  the  courts,  nor  upon  the  opinion  of 
the  Attorney  General,  nor  other  law  officer  of  the  govern- 
ment. 

For  the  foregoing  reasons  I  have  to  advise  you  that 
in  my  opinion  a  lien  for  demurrage  or  car  detention,  where 
it  exists,  is  embraced  by  Revised  Statutes  (Sec.  2981)  as 
amended  by  the  Act  of  May  21,  1896. 

Respectfully, 

THE  SECRETARY  OF  THE  TREASURY, 
MAURICE  D.  O'CONNELL,  Solicitor. 


139 


CIRCUIT  COURT,  TAZEWELL  COUNTY,  ILL. 
SEPTEMBER,  1903. 


UNREPORTED. 


T.  &  H.  SMITH  &  CO. 

VS. 
P.  &  P.  U.  RY.  CO. 


November  14th,  1901,  the  P.  &  P.  U.  Ry.  Co.  set  two 
cars  of  lumber  on  team  track  at  Pekin,  111.,  consigned  to 
T.  &  H.  Smith  &  Co.  As  one  of  said  cars  was  not  entirely 
unloaded  at  the  expiration  of  the  forty-eight  hours  al- 
lowed free,  and  consignee  refused  to  pay  the  car  service 
charge  due,  agent  removed  the  car  which  then  contained 
about  one  wagonload  and  a  half  of  flooring,  and  sent  the 
lumber  to  a  public  storehouse.  T.  &  H.  Smith  &  Co. 
brought  suit  against  the  P.  &  P.  U.  Ry.  Co.  for  $120.00, 
the  value  of  the  lumber  withheld  from  delivery. 

The  case  was  tried  before  Judge  George  W.  Brown, 
Circuit  Judge,  and  a  jury,  at  Pekin,  111.,  Tuesday,  Septem- 
ber 22nd.  1903,  the  court  instructing  the  jury  to  find  for 
defendant. 

A  stipulation  covering  most  of  the  facts  was  agreed 
to  between  opposing  counsels,  before  the  trial.  Plaintiff 
contended : 

First — That  while  forty-eight  hours  was  possibly  rea- 
sonable time  in  which  to  unload  one  car,  it  was  unreason- 
able when  more  than  one  car  arrived  at  the  same  time. 

Second — That  stipulations  in  bills  of  lading  had  no 
binding  effect  upon  consignee  unless  he  had  assented 
thereto. 

In  instructing' the  jury  to  find  in  favor  of  the  Railroad 
Company,  the  Court  said : 

"The  courts  in  this  state  have  held  that  railroad  com- 
panies have  the  right  to  charge  a  reasonable  amount  for 
detention  of  their  cars,  after  allowing  a  reasonable  time  for 
their  unloading,  assuming,  of  course,  that  consignee  had 


140 

notice  of  the  rule.  This,  I  think,  will  not  be  disputed.  I 
am  also  of  the  opinion  that  the  laws  of  this  state  give  rail- 
road companies  the  right  of  lien  upon  such  freight  as  lum- 
ber, and  other  bulk  shipments,  whether  same  be  held  in  the 
car  or  in  a  warehouse,  their  duties  as  warehousemen  being 
the  same,  whichever  method  of  storing  they  may  choose. 
The  question  here,  independent  of  the  contract,  is,  whether 
Smith  &  Co.  had  reasonable  time  in  which  to  unload  after 
arrival  and  notice.  The  contract  signed  by  shipper  is  to 
the  effect,  and  in  specific  terms,  gives  a  lien  for  demurrage 
charges  according  to  the  custom  of  the  place  and  the  road 
where  the  shipment  is  delivered.  There  has  been  no  evi- 
dence to  show  that  Smith  &  Co.  might  not  have  put  on 
more  men  and  unloaded  the  cars  in  time.  The  evidence 
shows  that  they  had  help  enough  to  unload  one  car  at  a 
time. 

Gentlemen  of  the  jury,  you  are  instructed  that  under 
the  law  and  the  evidence,  plaintiffs  cannot  recover,  and  the 
form  of  your  verdict  shall,  therefore,  be,  'We,  the  jury,  find 
for  the  defendant/  ' 

Prettyman  &  Velde,  attorneys  for  plaintiff;  Stevens, 
Horton  &  Abbott,  attorneys  for  defendant. 


CIRCUIT  COURT,  SAINT  JOSEPH  COUNTY,  IND. 
SEPTEMBER  TERM,  1903. 


UNREPORTED. 

ISAIAH  MILLER,  ET.  AL. 

VS. 

THE  TERRE  HAUTE  &  LOGANSPORT  RAILWAY 

COMPANY,  ET.  AL. 

NO.  9199. 


FINDINGS    OF   FACTS    AND    CONCLUSIONS    OF 

LAW. 

At  the  time  the  above  entitled  cause  was  submitted  to 
the  Court  for  trial,  the  plaintiffs  and  the  defendant,  The 


Terre  Haute  &  Logansport  Railway  Company,  filed  their 
written  request  that  the  Court  find  the  facts  specially,  and 
state  its  conclusions  of  law  thereon;  and  the  Court,  having 
heard  the  evidence,  does  now  make  its  special  finding  of 
facts  and  state  its  conclusions  of  law  thereon  as  follows : 


STATEMENT  OF  FACTS. 

1.  During  the  month  of  March,  1903,  and  for  more 
than  a  year  prior  thereto,  and  ever  since,  the  defendant, 
The  Terre  Haute  &  Logansport  Railway  Company,  was, 
has  been,  and  is,  a  common  carrier  of  freight  engaged  in 
operating  a  line  of  railroad  terminating  at  the  City  of  South 
Bend,  Indiana,  at  which  place  it  had  and  has  a  yard  with 
side  tracks,  switches,  and  a  freight  house  where  freight 
transported  over  its  railroad  was  and  is  delivered  to  per- 
sons entitled  to  receive  the  same. 

During  said  month  of  March,  the  said  defendant  had 
a  siding  commonly  known  as  a  team  track,  long  enough  to 
accommodate  from  fifteen  to  seventeen  freight  cars  when 
placed  thereon  for  unloading  purposes;  and,  during  said 
time,  it  was  said  defendant's  common  practice  and  custom 
to  place  freight  cars  loaded  with  heavy  freight,  such  as 
lumber,  to  be  delivered  in  car  load  lots,  upon  said  team 
track  to  be  unloaded  by  parties  entitled  to  the  freight.  The 
plaintiffs  had  full  knowledge  and  notice  of  its  practice  and 
custom  during  said  month  of  March,  1903,  and  before. 

2.  On  February  27,  1903,  the  Mobile  &  Ohio  Rail- 
road Company  received  from  one  O.  G.  Huff  at  Case  Sid- 
ing, Alabama,  one  car  load  of  yellow  pine  lumber,  being 
the  lumber  described  in  the  plaintiffs'  complaint  herein,  to 
be  transported  over  its  line  of  railroad  and  connecting  lines 
to  South  Bend,  Indiana.    Said  lumber  was  loaded  in  a  box 
car,  No.  9202,  and  bearing  the  initials  M.  and  O.,  and  the 
same  was  consigned  to  said  O.  G.  Huff,  South  Bend,  Indi- 
ana.    The  car  containing  the  lumber  arrived  over  the  rail- 
road and  in  the  yard  of  the  defendant,  The  Terre  Haute  & 
Logansport  Railway  Company,  at  South  Bend,  at  seven 
o'clock  A.  M.  on  March  19,  1903.     On  the  same  day  and 
immediately  after  its  arrival,  the  said  O.  G.  Huff  was  noti- 
fied of  the  arrival  of  the  car  by  said  defendant  by  postal 
card,  and  on  the  same  day,  he  directed  said  defendant  first 


142 

by  telephone  and  then  by  postal  card,  to  deliver  the  lumber 
contained  in  said  car  to  the  plaintiffs.  Said  car  containing 
the  lumber  was  placed  on  said  team  track,  at  a  point  where 
it  was  reasonably  convenient  and  suitable  for  the  plaintiffs 
to  unload  the  same,  by  said  defendant,  for  unloading  at 
eight  o'clock  a.  m.  of  "March  20,  1903,  and  the  plaintiffs 
had  knowledge  thereof  at  the  time  and  of  the  order  to  de- 
liver the  lumber  to  them  when  given. 

The  plaintiffs  did  not  unload  said  car  within  forty- 
eight  Hours,  excluding  Sunday,  after  seven  o'clock  a.  m.  of 
March  21,  1903.  After  seven  o'clock  a.  m.  of  March  24, 
1903,  the  defendant  made  out  a  bill  for  one  dollar  for  the 
car  service  charge  for  the  day  beginning  with  seven  o'clock 
a.  m.  of  that  day,  and,  by  an  employe  presented  the  same 
at  the  business  office  of  the  plaintiffs  at  South  Bend.  This 
bill  was  not  paid,  and  the  plaintiffs'  clerk,  then  in  their 
office,  and  having  authority  so  to  do,  informed  the  defend- 
ant's said  employe  that  the  plaintiffs  would  not  pay  said 
bill,  and  that  they  would  not  pay  any  car  service  charges. 
Thereafter,  and  on  the  same  day,  the  defendant  locked  the 
car,  and,  upon  demand  of  the  plaintiffs  made  before  the 
commencement  of  this  suit,  refused  to  deliver  the  lumber 
to  them,  unless  they  would  pay  the  car  service  charges  then 
accrued,  being  three  dollars.  The  plaintiffs  refused  to  pay 
said  sum  or  any  sum  whatever  as  car  service  charges,  and 
instituted  this  action.  The  plaintiffs  fully  paid  the  freight 
charges  for  transporting  said  lumber  on  March  26,  1903, 
and  the  same  was  taken  from  the  defendant  and  delivered 
to  the  plaintiffs,  under  the  writ  issued  and  bond  filed  here- 
in, on  March  28,  1903. 

3.  The  Court  finds  that  the  plaintiffs  were  the  owners 
of  said  lumber  described  in  their  complaint  from  the  time 
it  arrived  at  South  Bend,  Indiana,  on  March  19,  1903,  and 
until. after  it  was  delivered  to  them  under  the  writ  issued 
and  their  bond  filed  herein,  and  that,  when  it  was  replev- 
ined,  its  value  was  three  hundred  and  seventy-five  dollars; 
and,  further,  that  the  defendants  refused  to  deliver  up  the 
lumber  on  -demand,  solely  on  the  ground  that  car  service 
charges  had  accrued  to  the  railway  company  when  the  de- 
mand was  made,  and  that  it  had  a  lien  on  the  lumber  for 
the  amount  of  such  charges,  and  the  right  to  hold  the  same 
until  the  charges  were  paid. 


143 

4.  On  October  1,  1002,  the  defendant,  the  Railway 
Company,   and   all   the   other   railroad   companies   having 
yards  at  South  Bend,  became  members  of  the  Central  Car 
Service  Association,  and  continued  to  be  members  thereof 
until  April  1,  1903,  when  they  all  became  members  of  the 
Indiana  Car  Service  Association.     The  principal  object  of 
the  various  railroad  companies  that  were  and  became  mem- 
bers of  said  Central  Car  Service  Association,  in  organizing 
and  sustaining  the  same,  was  to  adopt,  promulgate,  and  en- 
force, through    its    agency,    rules    and    regulations,    that 
should  apply  to  all  companies,  members  thereof,  alike,  and 
to  all  their  customers  without  discrimination,  designed  to 
prevent  the  unreasonable  holdjng  and  detention  of  freight 
cars  placed  for  loading  and  unloading  on  their  tracks,  by 
their  customers ;  and  to  secure  the  prompt  loading  and.  un- 
loading of  freight  cars  used  by  them  and  the  speedy  clear- 
ing of  their  yards  and  tracks,  and  thereby  secure  the  great- 
est possible  use  of  their  freight  equipment  for  transporting 
purposes  to  the  end  that  the  shipping  public  might  be  well 
served  and  their  own  interest  be  promoted. 

5.  During  the  entire  time  from  October  1,  1902,  to 
April  1,  1903,  the  railroad  companies,  then  members  of  the 
Central  Car  Service  Association,  and,  particularly,  this  de- 
fendant, the  Railway  Company,  had  in  force  certain  rules 
intended   to   accomplish   the   purposes   above   stated   and 
which  had  been  promulgated  and  which  were  well  known 
to  the  plaintiffs  during  all  of  the  months  of  February  and 
March,  1903,  of  which  the  following  are  the  ones  and  the 
only  ones  that  are  material  to  the  issues  in  this  cause, 
to  wit : 

"RULE  1. 
Free  Time  Allowed  for  Loading  or  Unloading. 

Sec.  3.  On  all  commodities  for  unloading,  except  bi- 
tuminous coal  and  grain,  two  days'  free  time  will  be  al- 
lowed. Agents  will  charge  car  service  after  the  expiration 
of  forty-eight  hours  from  7  a.  m.  following  placing. 

Sec.  5.  Cars  for  loading  or  unloading  shall  be  consid- 
ered placed  when  such  cars  are  held  subject  to  the  orders 
of  consignors  or  consignees  or  held  for  the  payment  of 
freight  charges. 


144 
I 

Sec.  6.  After  the  expiration  of  the  free  time  allowed, 
a  charge  of  $1.00  per 'car  per  day  or  fraction  thereof  shall 
be  made  and  collected  upon  all  cars  set  for  loading  or  un- 
loading. 

RULE  10. 
Collection  of  Car  Service. 

Sec.  1.  On  all  public  deliveries,  car  service  must  be 
collected  by  the  agent  daily  as  it  accrues.  Where  con- 
signees or  consignors  refuse  to  pay,  the  agent  must  hold 
the  car  until  payment  is  made ;  the  regular  charges  being 
assessed  until  car  is  unloaded,  or,  at  his  option,  he  may 
direct  the  sending  of  such  cars  to  public  storage  houses  or 
yards,  where  the  freight  will  be  held  subject  to  regular 
storage  charges  in  addition  to  accruing  car  service  and  all 
other  charges. 

RULE  12. 

Agents  will  be  held  responsible  for  the  collection  of 
car  service  charges  on  public  tracks  in  exact  accordance 
writh  placing  and  releasing." 

And  the  Court  finds  that  said  rules  were  and  are  rea- 
sonable and  that  their  enforcement  was  effective  to  accom- 
plish the  object  designed  thereby  as  hereinbefore  found, 
and,  particularly,  that  the  interests  of  both  the  general 
shipping  public  and  the  railroad  companies  causing  the 
same  to  be  enforced  were  promoted  thereby;  and,  further, 
that  the  free  time  allowed  by  said  rules  for  unloading 
freight  cars  was  reasonable,  and  that  the  charge  of  one  dol- 
lar per  day  for  the  use  of  a  freight  car  on  track,  after  the 
lapse  of  the  free  time,  was  reasonable  and  less  than  the 
useable  value  of  a  freight  car  generally,  and  less  than  the 
useable  value  of  the  freight  car  in  which  was  the  plaintiffs' 
lumber  at  the  time  the  same  stood  on  the  defendant's  team 
track  as  hereinbefore  found. 

6.  The  Court  further  finds  that,  at  the  time  said  lum- 
ber was  received  by  the  Mobile  &  Ohio  Railroad  Company 
at  Case  Siding,  Alabama,  for  shipment,  it  issued  to  the  con- 
signor, who  was  also  the  consignee  named  therein,  one  O. 
G.  Huff,  its  bill  of  lading,  which  he  sent  to  the  plaintiffs, 
and  which  provides  that  said  lumber  should  be  transported 


145 

by  said  company  and  the  forwarding  lines  with  which  it 
connects  to  South  Bend,  Indiana,  and  that  the  liability  of 
the  companies  thereunder  as  carriers  should  terminate  on 
the  arrival  of  the  lumber  at  the  station  of  delivery,  and  that 
the  companies  should  be  liable  as  warehousemen  only 
thereafter,  and  that  the  consignee  should  promptly  receive 
and  take  away  the  lumber  as  soon  as  the  same  was  ready 
for  delivery,  and,  in  the  event  that  the.  consignee  failed  to 
receive  and  remove  the  freight  within  forty-eight  hours 
after  it  was  ready  for  delivery,  he  and  the  consignor  agreed 
that  the  delivering  carrier  should  be  paid  the  sum  of  $2.00 
per  day  for  each  and  every  day  that  the  lumber  remained  in 
the  car  after  the  expiration, of  the  forty-eight  hours  al- 
lowed for  unloading,  and  that  the  same  was  the  amount 
agreed  on  as  liquidated  and  reasonable  damages  for  the 
detention  of  the  car  per  day,  and  that  for  the  amount  thus 
accruing,  the  delivering  carrier  should  have  a  lien  in  addi- 
tion to  the  common  law  lien  for  freight,  charges  and  ad- 
vances, and  might  detain  said  lumber  or  any  part  thereof 
for  the  payment  of  such  damages  as  well  as  for  other 
charges  and  advances. 

Said  bill  of  lading  further  provides  as  follows : 

"Notice. — In  accepting  this  contract,  the  shipper  or 
other  agent  of  the  owner  of  the  property  carried,  expressly 
accepts  and  agrees  to  all  its  stipulations  and  conditions." 

The  defendant,  Railway  Company,  was  the  last  and  de- 
livering carrier  of  said  lumber. 

7.  At  the  time  the  demand  was  made  by  the  plaintiffs 
for  the  lumber,  three  dollars  for  car  service  or  damages  as 
claimed  by  the  Railway  Company  had  accrued  to  it,  and 
two  dollars  more  accrued  before  the  car  was  unloaded. 

8.  As   to   the   defendant,   John    C.    Edgeworth,    the 
Court   finds   that   he    was    the    defendant    Railway    Com- 
pany's station  agent  at  South  Bend,  Indiana,  during  March, 
1903,  and,  that,  as  such  agent,  it  was  his  duty  to  collect  the 
car  service  charges  that  might  accrue  to  his  principal  and 
to  assert  its  lien  therefor  on  the  property  in  its  cars ;  and 
that  he  did  endeavor  to  collect  the  car  service  charges  and 


146 


damages  on  said  car  of  lumber  from  the  plaintiffs,  and  upon 
their  refusal  to  pay  the  same,  as  hereinbefore  found,  he  re- 
fused, on  behalf  of  his  principal,  to  deliver  up  the  lumber, 
upon  the  ground  solely  that  the  said  Railway  Company  had 
the  right  to  hold  the  same  for  the  payment  of  said  charges. 


CONCLUSIONS  OF  LAW. 

Upon  the  foregoing  facts  found,  the  Court  now  states 
its  conclusions  of  law  as  follows : 

1.  At  the  time  the  car  load  of  yellow  pine  lumber  de- 
scribed in  the  complaint  was  taken  from  the  defendant, 
The  Terre  Haute  &  Logansport  Railway  Company,  under 
the  writ  of  replevin  issued  in  this  suit,  the  said  defendant 
had  and  held  a  lien  on  the  lumber  for  its  car  service  charges 
or  damages  in  the  sum  of  five  dollars  then  accrued  to  it, 
and  was  then  and  at  the  time  the  demand  was  made  for  the 
lumber  and  when  this  suit  was  commenced  entitled  to  hold 
the  possession  of  the  lumber  for  the  payment  of  its  charges 
or  damages,  accrued  to  it  at  each  of  said  times,  and  the 
plaintiffs,  though  the  owners  of  said  lumber,  were  not  en- 
titled to  the  possession  thereof  at  the  time  this  suit  was 
commenced  or  when  the  same  was  delivered  to  them  under 
the  writ  of  replevin  and  bond  issued  and  filed  herein. 

2.  That  the  defendant,  The  Terre  Haute  &  Logans- 
port  Railway  Company,  is  entitled  to  the  return  of  the  lum- 
ber described  in  the  complaint,  the  value  of  which  is  three 
hundred  seventy-five  dollars. 

3.  The  law  of  the  case  is  with  the  defendants  and  they 
are  entitled  to  recover  of  the  plaintiffs  their  costs ;  and  the 
plaintiffs  should  take  nothing  by  this  action. 


147 


SUPREME  COURT  OF  ILLINOIS. 
OCTOBER  TERM,  A.  D.  1903.     , 


207  ILL.  SUP.,  199. 


BOWEN  W.  SCHUMACHER,  Appellant, 
VS. 

THE   CHICAGO    &   NORTHWESTERN    RAILWAY 
COMPANY,  Appellee. 


Appeal   from   Appellate   Court,   Second   District. 


SYLLABUS. 

1.  Railroads  are  quasi  public  corporations,  and  rea- 
sonable rules  and  regulations  adopted  by  such  corpora- 
tions, conducive  to  the  proper  discharge  of  this  public  duty, 
should,  where  they  are  not  in  violation  of  some  public  law, 
be  sustained. 

2.  The  court  reaffirms  the  doctrine  that  atter  the  de- 
livery of  a  car  containing  the   freight,  to  the  consignee, 
upon  its  own  track,  or  at  the  place  selected  by  him  for 
unloading,  if  he  have  one,  or  to  the  consignee  upon  the 
company's  usual  and  customary  track  for  the  discharge 
of  freight,  and  a  reasonable  opportunity  is  given  to  the 
consignee  to  take  the  same,  then  as  to  such  freight  the 
railroad  companies  occupy  the  relation  of  warehouse  men. 

3.  If  cars  in  which  freight  is  shipped,  are  the  property 
of  another  railroad  than  that  of  the  company  transporting 
the  same  to  the  point  of  destination,  such  latter  company 
bears  the   same  relation  to  such  cars  as   to  the  freight 
therein. 

4.  It  is  the  duty  of  the  consignee  to  take  notice  of  the 
time  of  the  arrival  of  freight  shipped  to  him,  and  to  be 
present,  and  to  receive  the  same  upon  arrival,  and  he  is  not 
entitled  to  notice  from  the  company  that  the  same  has  ar- 
rived, but  the  company  is  authorized  to  store  such  freight 
and  to  be  relieved  of  its  duty  as  a  common  carrier. 


148 

5.  When  a  railroad  company,  delivering  freight  at  its 
point  of  destination,  has  no  warehouse  at  that  point,  suit- 
able for  the  storage  of  bulk  freight  in  carload  lots,  and  the 
property  is  of  such  character  that  the  cars  in  which  it  is 
transported,  furnish  a  proper  and  safe  place  for  the  same, 
said  freight  may  properly  be  held  in  storage  in  the  cars  in 
which  the  same  was  carried. 

6.  The  public  interests  require  that  cars  should  not 
be  unreasonably  detained. 

7.  The  case  of  Jenkins  vs.  The  Chicago  &  North- 
western Railway  Company,  103  111.,  588,  does  not  apply 
in  cases  of  this  kind. 

8.  The  free  time  allowed  by  car  service  rules  for  the 
removal  of  goods  from  a  car,  should  not  be  dependent 
upon  the  distance  the  same  may  be  hauled,  or  the  number 
of  teams  employed  in  making  delivery. 

9.  The  object  of  the  rule  requiring  a  charge  of  $1.00 
per  car  per  day,  for  car  service,  is  not  so  much  for  the  re- 
covery of  revenue,  as  for  the  enforcement  of  a  rule  that  is 
for  the  benefit  of  all  shippers,  and  is  thereby  a  public  bene- 
fit.   From  the  facts  submitted  to  the  court  in  this  case,  the 
charge  of  $1.00  per  day  is  held  to  be  a  very  reasonable 
charge. 

10.  The  right  of  a  railroad  company  to  a  lien  for  stor- 
age of  car  service  charges  that  are  reasonable  is  sutained. 

The  court  in  its  conclusion  said : 

"The  views  above  expressed  as  to  the  rules  pertaining 
to  such  charges,  whether  regarded  as  railroad  charges  or 
demurrage  or  car  service  charges,  seems  to  be  in  keeping 
with  the  weight  of  modern  decisions  upon  the  question, 
and,  we  believe,  will  tend  to  the  public  welfare." 


ABSTRACT  OF  RECORD  OF  APPELLATE  COURT. 

Placita,  April  Term,  1903. 

Order  entered  April  10,  1903,  that  cause  be  taken  un- 
der advisement. 


149 

Judgment  rendered  June  8,  1903.  Affirmed  the  judg- 
ment of  the  Circuit  Court  of  Lake  County  in  all  things  and 
that  "the  appellee  recover  of  and  from  the  appellant  its 
costs  by  it  in  this  behalf  expended  to  be  taxed,  and  that  it 
have  execution  therefor." 


On  the  19th  day  of  June,  1903,  on  petition  of  Bowen 
W.  Schumacher  praying  for  an  appeal  from  the  order  and 
judgment  of  the  Appellate  Court  to  the  Supreme  Court, 
said  Appellate  Court  certified  that  the  cause  involved  ques- 
tions of  law  of  such  importance  on  account  of  collateral  in- 
terests that  it  should  be  passed  upon  by  the  Supreme  Court, 
and  order  entered  allowing  the  said  Bowen  W.  Schumach- 
er, appellant,  an  appeal  to  the  Supreme  Court  from  the 
said  judgment  of  the  Appellate  Court,  on  condition  that 
said  appellant  within  twenty  days  from  June  19,  1903,  exe- 
cute and  file  a  bond  in  the  penal  sum  of  $250. 

Appeal  bond  in  the  sum  of  $250,  approved  and  filed 
June  24,  1903. 

Certificate  of  the  clerk  of  the  Appellate  Court  to  the 
transcript  of  the  record  in  that  court. 


OCTOBER   TERM,  A.  D.,   1903. 


BOWEN  W.  SCHUMACHER,  Appellant. 

vs. 
CHICAGO  &  NORTHWESTERN  RAILWAY  CO.,  Appellee. 


Appeal  from  Appellate  Court,  Second  District. 


ASSIGNMENT  OF  ERRORS. 

And  now  comes  the  said  Bowen  W.  Schumacher,  ap- 
pellant, by  Louis  Zimmerman,  his  attorney,  and  says  that 
in  the  record  and  proceedings  and  in  rendering  the  judg- 
ment aforesaid  in  the  Appellate  Court,  there  is  manifest 
error  in  this,  to  wit : 


First — Said  Appellate  Court  erred  in  affirming  the 
judgment  of  Lake  County  as  follows :  'Therefore,  it  is 
considered  by  the  court  that  the  judgment  aforesaid  be 
affirmed  in  all  things  and  stand  in  full  force  and  effect,  not- 
withstanding the  said  matters  and  things  therein  assigned 
for  error.  And  it  is  further  considered  by  the  court  that 
the  said  appellee  recover  of  and  from  the  said  appellant  its 
costs  by  it  in  this  behalf  expended  to  be  taxed,  and  that  it 
have  execution  therefor." 

Second — Said  Appellate  Court  erred  in  not  reversing 
the  judgment  of  the  Circuit  Court  of  Lake  County  and  re- 
manding the  said  cause  to  the  court  below  for  trial  de  novo. 

Third — Said  Appellate  Court  erred  in  not  reversing 
the  judgment  of  the  Circuit  Court  of  Lake  County  and 
rendering  final  judgment  for  the  appellant  that  the  right 
to  the  possession  of  the  coke  involved  in  this  suit  at  the 
time  of  the  commencement  of  this  suit  was  in  the  appell- 
ant, together  with  the  costs  of  suit. 

Fourth — Said  Appellate  Court  erred  in  rendering  a 
judgment  contrary  to  the  evidence  in  the  case. 

Fifth — Said  Appellate  Court  erred  in  rendering  a  judg- 
ment contrary  to  the  law  of  the  case. 

By  reason  whereof  the  appellant,  Bowen  W.  Schu- 
macher, prays  that  the  judgment  of  the  said  Appellate 
Court  may  be  reversed  and  that  judgment  may  be  entered 
in  his  favor  and  against  the  appellee;  or  that  such  other 
proceedings  may  be  taken  as  may  be  justified  by  the  law 
and  the  evidence. 

LOUIS  ZIMMERMAN, 

Attorney  for  Appellant. 

OPINION  OF  APPELLATE  COURT,  SECOND  DISTRICT. 

Opinion  by  Judge  George  W.  Brown,  filed  June  8, 
1903. 

This  is  an  action  of  replevin  instituted  by  appellant  to 
recover  from  appellee  possession  of  three  tons  of  coke. 
The  court  at  the  conclusion  of  all  the  evidence  directed 
a  verdict  for  appellee  and  entered  judgment  thereon  from 
which  this  appeal  was  prosecuted. 


It  appears  from  the  record  that  Schumacher,  a  prac- 
ticing lawyer  in  Chicago,  resides  in  Highland  Park,  a  vil- 
lage of  two  or  three  thousand  inhabitants,  on  the  line  of 
the  Chicago  &  Northwestern  Railway,  in  Lake  County. 
Schumacher  shipped  two  carloads  of  coke  from  Chicago 
over  appellee's  line  of  railroad  to  his  residence  in  High- 
land Park.  Schumacher  was  promptly  notified  of  the  ar- 
rival of  the  cars,  and  that  unless  they  were  unloaded  within 
forty-eight  hours  a  demurrage  or  car  service  charge  of 
$1.00  per  day  for  each  car  would  be  charged  after  the  ex- 
piration of  such  time.  One  car  was  promptly  unloaded 
within  thirty-six  hours  after  the  work  of  unloading  was  be- 
gun. The  remaining  car  was  not  unloaded  at  the  expira- 
tion of  ten  days  after  its  arrival  at  Highland  Park  and 
notice  to  Schumacher,  who  worked  for  a  week  in  an  inter- 
rupted, indifferent  and  dilatory  manner  in  attempting  to 
unload  the  car,  when  the  railroad  company  sealed  the  car 
and  refused  to  permit  him  to  remove  more  of  the  coke  till 
the  demurrage  charges  claimed  by  the  company  were  paid. 
Schumacher  thereupon  instituted  this  replevin  suit  to  re- 
cover possession  of  the  coke. 

The  question  presented  for  our  determination  is 
whether  a  railroad  company  under  the  laws  of  Illinois 
is  entitled  to  a  lien  upon  coke,  coal  or  a  like  commodity, 
retained  by  the  common  carrier  in  its  freight  cars  in  which 
it  is  shipped,  for  reasonable  charges  for  storage  after  the 
expiration  of  a  reasonable  length  of  time  by  the  shipper 
to  remove  the  same  and  failure  on  his  part  so  to  do. 

The  evidence  warranted  the  court  in  assuming  as  a 
basis  of  its  peremptory  instruction  that  Schumacher  did  not 
unload  the  car  within  a  reasonable  length  of  time.  The 
right  of  a  railroad  company  to  recover  reasonable  charges 
for  the  unreasonable  detention  of  a  car  by  a  shipper  is  no 
longer  an  open  question.  Miller  vs.  Mansfield,  112  Mass., 
260;  Barker  vs.  Brown,  138  Mass.,  340;  Kentucky  Wagon 
Co.  vs.  L.  &  N.  R.  R.  Co.,  50  Am.  and  Engl.  Cases,  90; 
Miller  vs.  Georgia  Railroad  Company,  88  Ga.,  563;  Norfolk 
&  Western  R.  R.  Co.  vs.  Adams,  90  Va.,  393 ;  Kentucky 
Wagon  Co.  vs.  O.  &  M.  Ry.  Co.,  97  Ky.,  32;  Pennsylvania 
Co.  vs.  Midvale  Steel  Co.,  Pa.  Sup.,  51  Atl.,  313 ;  Elliott  on 
Railroads,  Vol.  4,  Sec.  1567;  Goff  vs.  Old  Colony  R.  R.  Co. 
(R.  I.)  22  L.  R.  A.,  532.  A  railroad  company  may  after 
the  expiration  of  a  reasonable  time  to  the  shipper  to  re- 


152 

move  the  same,  terminate  its  liability  as  a  common  carrier 
by  unloading  and  storing  freight  in  its  warehouse,  thereby 
assuming  the  liability  of  a  warehouseman  only,  and  have  a 
lien  for  reasonable  storage  charges.  I.  C.  R.  R.  Co.  vs. 
Alexander,  20  111.,  404;  Porter  vs.  Railroad,  20  111.,  407; 
M.  D.  T.  Co.  vs.  Hallock,  G4  111.,  284;  R.  R.  Co.  vs.  Friend, 
64  111.,  303;  Anchor  Line  vs.  Knowles,  66  111.,  150;  Roths- 
child vs.  Railroad  Co.,  69  111.,  164;  Cahn  vs.  R.  R.  Co.,  71 
111.,  96;  M.  D.  T.  Co.  vs.  Moore,  88  III,  136;  Scheu  vs. 
Benedict,  116  N.  Y.,  510.  When  the  right  to  a  lien  exists, 
the  same  will  not  be  defeated  by  the  fact  that  the  amount 
claimed  may  be  too  large,  unless  the  owner  or  party  desir- 
ing the  possession  of  the  goods  makes  a  tender  of  the 
amount  due.  Russel  vs.  Koehler,  66  111.,  459;  Hoyt  vs. 
Sprague,  61  Barb.,  491;  B.  &  L.  H.  Ry.  Co.  vs.  Gordon,  16 
U.  C."  L.  B.,  283 ;  Lowenberg  vs.  A.  &  L.  Ry.  Co.,  19  South- 
western, 1051 ;  Schouler  on  Bailments,  Sec.  125. 

Where  a  party  has  a  lawful  lien  on  goods  for  storage, 
although  he  may  have  delivered  part  of  them  without  in- 
sisting upon  the  lien,  nevertheless,  he  has  a  right  to  retain 
the  residue  for  the  amount  due  upon  the  whole.  Lans.  vs. 
O.  C.  &  F.  R.  R.  Co.,  14  Gray,  143;  M.  H.  &  N.  Co.  vs. 
Campbell,  128  Mass.,  104;  Steinman  vs.  Wilkins,  7  W.  & 
S.,  466;  McFarland  vs.  Wheeler,  26  Wendell,  467;  Darling- 
ton vs.  Missouri  Pacific,  St.  Louis  Ct.  of  Appeals,  South- 
western Reporter,  December,  1902. 

It  is  well  settled  that  a  common  carrier,  in  addition  to 
its  compensation  for  the  carriage  of  goods,  has  the  right  to 
charge  for  their  storage  and  keeping,  as  a  warehouseman, 
for  whatever  time  they  remain  in  its  custody  after  reason- 
able opportunity  has  been  afforded  the  owner  to  remove 
them.  And,  we  think,  where  the  carrier's  duty  ends  with 
the  transportation  of  the  car  and  its  delivery  to  the  cus- 
tomer, and  no  further  service  is  embraced  in  the  contract, 
the  carrier,  after  a  reasonable  time  has  been  allowed  for 
unloading,  is  as  much  entitled  to  charge  for  the  further  use 
of  its  car,  as  it  would  be  for  the  use  of  its  warehouse.  We 
know  of  no  good  reason  why  it  should  be  restricted  to  the 
latter  method  of  storage.  There  is  no  law  which  inhibits 
the  use  of  cars  for  this  purpose,  or  which  requires  unload- 
ing and  removal  of  the  goods  to  some  other  structure  be- 
fore any  charge  for  storage  can  attach.  This  method  of 
storage  may  in  many  cases  be  as  effectual  as  any  other. 


153 

Indeed,  it  may  serve  the  customer's  interest  and  conveni- 
ence much  better  to  have  the  car  placed  at  his  own  place 
of  business,  where  he  may  unload  it  himself,  or  where  it 
may  be  unloaded  by  purchasers  as  the  goods  are  sold,  thus 
saving  drayage  and  other  expenses,  than  to  have  it  un- 
loaded by  the  carrier,  and  the  goods  stored  elsewhere  at 
the  consignee's  expense.  And  if  a  customer,  whose  duty 
it  is  to  unload,  and  who,  failing  to  do  so  within  a  reasonable 
time,  accepts  the  benefit  of  storage  in  a  car,  by  requesting 
or  permitting  the  carrier  to  continue  holding  it  unloaded  in 
service,  and  subject  to  his  will  and  convenience  as  to  the 
time  of  unloading,  he  cannot  be  heard  to  complain  of  the 
method  of  storage  and  to  deny  the  right  to  any  compensa- 
tion at  all  for  this  service  on  "the  ground  that  some  other 
method  was  not  resorted  to.  He  may  insist  that  the  rate 
fixed  shall  not  be  unreasonable  or  excessive,  but  the  law 
cannot  be  invoked  to  declare  that  no  compensation  what- 
ever shall  be  charged  for  such  extra  service.  Miller  vs. 
Georgia  Railroad  Company,  88  Georgia,  563. 

In  Miller  vs.  Mansfield,  112  Mass.,  263,  which  was  a 
case  involving  the  relative  rights  of  common  carrier  and 
shipper  with  reference  to  100  barrels  of  flour,  the  court 
said: 

"This  charge  is,  in  its  essential  character,  a  charge  for 
storage.  After  the  arrival  of  the  goods  at  their  destina- 
tion the  liability  of  the  company  as  common  carrier  ceased, 
but  they  became  liable  for  the  custody  of  the  goods  as 
warehousemen,  and,  if  they  were  not  removed  within  a  rea- 
sonable time,  were  entitled  to  compensation,  for  which  they 
had  a  lien  as  warehousemen.  *  *  It  is  not  material 

that  the  goods  remained  in  the  cars  instead  of  being  put 
in  a  storehouse.  The  responsibility  of  the  company  for 
their  custody  was  the  same  as  if  they  had  been  stored,  and 
they  had  the  right  to  retain  them  until  their  charges  were 
paid." 

And  in  Gregg  vs.  111.  Cent.  Ry.  Co.,  147  111.,  550,  it 
was  held  that  the  liability  of  a  railroad  company  as  a  com- 
mon carrier  of  freight  ceased  upon  unloading  the  goods 
from  the  car  at  the  place  of  destination  and  placing  them  in 
a  safe  or  secure  warehouse ;  and  that  where  the  carrier  was 
not  required,  in  the  usual  course  of  business,  or  expected, 
to  remove  the  freight  from  the  car,  as  in  the  case  of  grain 
in  bulk,  coal,  lumber  and  the  like,  its  liability  as  a  common 


154 

carrier  would  terminate  by  delivering  the  car  in  a  safe  and 
convenient  position  for  unloading,  at  the  elevator,  ware- 
house or  other  like  place  designated  by  the  contract  or  re- 
quired in  the  usage  of  business,  or,  if  no  place  of  delivery 
were  designated  or  required  on  the  said  contract,  in  the 
usual  and  customary  place  for  unloading  by  consignees; 
and  that  where  the  consignee  of  car  lots  of  such  commodi- 
ties failed  to  receive  the  same  or  designate  any  place  of  de- 
livery, the  carrier  would  not  be  permitted  to  abandon  the 
freight,  but  would  be  required  to  exercise  ordinary  and 
reasonable  care  for  its  preservation,  as  warehousemen; 
that  in  the  exercise  of  such  care  the  common  carrier  might 
leave  the  freight  in  the  car  or  store  it  in  a  warehouse,  as- 
suming the  liability  imposed  by  law  in  such  case  for  its 
care.  The  same  case  held  in  express  terms  that  a  common 
carrier,  while  it  thus  retained  possession  of  freight  com- 
mitted to  it  for  transportation,  was  entitled  to  a  lien  both 
for  its  charges  as  a  common  carrier  and  as  warehousemen. 

It  is  contended  by  appellant  that  the  trial  court  erred 
in  refusing  to  permit  him  to  prove  the  distance  required 
to  haul  the  coke  from  the  car  of  appellee  to  his  place  of 
residence.  The  testimony  of  appellant  shows  that  his  place 
of  residence  was  within  the  corporate  limits  of  the  village 
of  Highland  Park.  We  hold  that  the  rejection  of  this  testi- 
mony was  not  reversible  error.  It  cannot  be  held  that 
different  residents  of  the  same  village,  like  that  in  which 
appellant  resided,  can  be  entitled  under  circumstances  pre- 
cisely similar  except  the  distance  of  their  respective  resi- 
dences from  the  side  tracks  of  the  railroad,  are  entitled  to 
materially  different  lengths  of  time  for  unloading  car  lots 
of  coke,  coal,  lumber  and  other  like  commodities.  If  such 
were  not  the  rule  a  person  residing  many  miles  distant 
from, the  village  would  be  entitled  to  practically  an  unlim- 
ited length  of  time  within  which  to  unload  a  carload  of 
similar  freight.  Such  a  rule  cannot  be  declaratory  of  the 
law  applicable  to  the  case.  The  judgment  of  the  Circuit 
Court  is  affirmed. 

Affirmed. 

BRIEF  AND  ARGUMENT  FOR  APPELLEE. 


STATEMENT  OF  THE  CASE. 

The  form  of  the  action  and  the  nature  of  the  plead- 
ings are  correctly  stated  in  the  brief  of  appellant. 


155 

As  appellee  does  not  feel,  however,  that  the  state- 
ment of  facts  as  prepared  by  appellant  is  sufficiently  full  to 
enable  this  court  to  properly  pass  upon  the  questions  in- 
volved in  this  case,  the  following  statement  of  facts  is  sub- 
mitted : 

The  cars  in  question  arrived  at  Highland  Park  on 
June  20th,  at  about  7.30  o'clock  a.  m.,  and  were  placed 
upon  the  east  team  track  where  same  were  accessible  for 
unloading  from  one  side.  On  Saturday  morning,  June 
21st,  they  were  placed  upon  the  west  team  track,  where 
they  remained  until  unloaded,  and  where  they  were  acces- 
sible for  unloading  upon  both  sides  (Abst.,  10  and  11;  Rec., 
32J-35.)  They  were  placed  at  the  end  of  the  switch  track, 
and  there  was  no  interference  with  same  thereafter  by  rea- 
son of  any  subsequent  switching  (Abst.,  30;  Rec.,  65.) 
There  was  plenty  of  room  to  handle  teams  in  unloading  the 
cars,  and  there  was  no  mud  where  the  cars  stood  (Abst., 
11;  Rec.,  35.) 

John  H.  Arps,  agent  of  appellee,  mailed  appellant  a 
postal  card  about  9  o'clock  on  June  20th,  notifying  him  of 
the  arrival  of  the  cars.  A  second  postal  card  was  mailed  to 
appellant  about  noon  on  June  20th  (Abst.,  10,  11;  Rec., 
32-J-33.)  Appellant  admits  having  received  a  postal  card 
notice  on  the  21st,  some  time  between  half-past  eight  and 
nine  o'clock.  There  was  printed  upon  said  postal  card, 
among  other  things,  the  following: 

"All  carload  freight  shall  be  subject  to  a  minimum 
charge  for  trackage  and  rental  of  $1.00  per  car  for 
each  twenty-four  hours  detention,  or  fractional  part 
thereof,  after  the  expiration  of  forty-eight  hours  from 
its  arrival  at  destination.  Jno.  H.  Arps,  Agent." 

Across  the  face  of  said  postal  card  was  stamped  the 
following : 

"If  this  car  is  not  unloaded  within  forty-eight  hours 
from  7  K.  A.  M.,  June  21,  1902,  a  charge  of  $1.00  per 
day  or  fraction  thereof,  will  be  made  for  car  service, 
for  which  this  company  reserves  a  lien  upon  the  con- 
tents of  car." 

• 

(Abst.,  4;  Rec.,  23.) 


156 

Appellant  admitted  there  was  another  notice  which  he 
thinks  was  at  the  house.  He  did  not  get  it  and  had  not 
seen  it,  but  saw  it  afterward.  Did  not  know  whether  the 
notice  offered  in  evidence  was  the  first  or  second  notice 
sent  (Abst.,  8;  Rec.,  29  J.) 

Agent  Arps  saw  appellant  Friday  morning,  June  20th, 
and  told  him  he  had  mailed  a  notice,  and  had  the  two  cars 
of  coke  on  the  track,  and  that  the  cars  should  be  unloaded 
Monday  evening  (Abst.,  11;  Rec.,  33.) 

Appellant  did  not  pay  freight  charges  until  June  21st, 
when  he  gave  his  check  upon  the  Bankers'  National  Bank 
for  $19.63  (Abst.,  4;  Rec.,  25.)  At  that  time  he  received 
two  receipts  from  the  agent  of  appellee,  upon  both  of  which 
was  the  following  notation : 

"If  this  car  is  not  unloaded  within  forty-eight  hours 
from  7  K.  A.  M.,  June  21,  1902,  a  charge  of  $1.00  per 
day  of  fraction  thereof  will  be  made  for  car  service, 
for  which  this  company  reserves  a  lien  upon  the  con- 
tents of  car." 

(Abst.,  6;  Rec.,  26.) 

At  .the  time  said  receipts  were  given  to  appellant,  he 
was  advised  by  the  agent  of  the  appellee  that  in  estimating 
time,  Sunday  would  not  be  counted  (Abst.,  5;  Rec.,  25); 
and  that  the  cars  were  ready  for  unloading  (Abst.,  5;  Rec., 
25J.) 

Appellant  arranged  with  Mr.  Duffy  to  unload  the  cars, 
who  commenced  to  unload  on  Monday  morning,  the  23rd. 
The  first  car  was  unloaded  some  time  Tuesday  forenoon, 
but  the  agent's  books  show  same  released  as  of  Monday, 
June  23rd  (Abst.,  12 ;  Rec.,  35.)  On  Thursday,  June  26th, 
appellee's  agent  stopped  Duffy  from  unloading  for  two  or 
three  hours,  at  the  expiration  of  which  time  the  wife  of 
appellant  told  the  agent  of  appellee  that  she  wrould  person- 
ally pay  the  car  service  charges,  whereupon  the  agent  al- 
lowed Duffy  to  proceed  with  the  unloading  (Abst.,  12; 
Rec.,  36.)  Having  sent  a  messenger  for  the  check  prom- 
ised by  the  wife  of  appellant,  but  not  receiving  same,  agent 
of  appellee  on  Friday,  the  27th,  again  stopped  Duffy  for 
two  or  three  hours,  at  the  end  of  which  time  check  was  re- 
ceived and  Duffy  allowed  to  proceed  with  the  unloading 
(Abst.,  12,  13;  Rec.,  37.)  The  Saturday  following,  payment 


157 

was  refused  on  the  check  when  presented  by  agent  of  ap- 
pellee, and  he  again  stopped  the  unloading.  A  writ  of  re- 
plevin was  then  obtained  by  appellant.  The  second  car 
was  finally  unloaded  on  Monday,  June  30th,-  about  10 
o'clock  (Abst.,  13;  Rec.,  37.) 

A  pamphlet  was  introduced  in  evidence  and  identified 
by  Mr.  Arps,  agent  of  appellee,  as  being  the  car  service 
rules  adopted  by  the  Chicago  and  Northwestern  Railroad 
(Abst.,  13;  Rec.,  37),  by  which  he  was  governed  in  the  ap- 
plication of  car  service  at  Highland  Park.  The  rules  were 
entitled  as  being  the  rules  of  the  Chicago  Car  Service  As- 
sociation. Rules  2,  4  and  23  are  as  follows : 

"2.  Forty-eight  hours  free  time  will  be  allowed 
for  loading  or  unloading  all  cars,  whether  on  public 
or  private  tracks,  at  the  expiration  of  which  time  a 
charge  of  $1.00  per  car  per  day,  or  fraction  thereof, 
shall  be  made  and  collected,  for  the  use  of  cars  and 
tracks  held  for  loading  or  unloading,  or  subject  to  the 
orders  of  consignors  or  consignees,  or  their  agents. 

4.     In  calculating  time,  Sundays  and  the  following 
holidays  are  excepted :     New  Year's  Day,  Washing- 
•  ton's  Birthday,  Decoration  Day,  Fourth  of  July,  Labor 
Day,  Thanksgiving  Day  and  Christmas. 

23.  The  manager  of  this  association  is  authorized 
to  entertain  claims  for  relief  from  or  refund  of  charges 
collected  under  these  rules,  based  upon  the  following 
reasons : 

(a)  That  cars  were  bunched  en  route  by  the  rail- 
road company,  and  were  not  delivered  in  the  order  in 
which  they  were  billed. 

(b)  That  cars  were  not  placed  for  unloading  in  the 
order  in  which  they  arrived. 

(c)  Condition  of  the  weather. 

Such  claims  must  show  the  character  of  the  car  and 
all  particulars  why  cars  cannot  be  loaded  or  unloaded 
within  forty-eight  hours."  (Abst.,  lo ;  Rec.,  40  and 
41.) 


158 

The  above  rules  apply  uniformly  over  the  district 
bounded  on  the  east  by  Lake  Michigan,  and  on  the  north, 
west  and  south  by  the  Elgin,  Joliet  and  Eastern  Railroad 
(Abst.,  20;  Rec.,  49.)  All  of  the  railroads  within  the  terri- 
tory above  described,  have  the  same  car  service  rules 
(Abst.,  19 ;  Rec.,  47.)  These  rules  were  in  force  at  the  time 
in  question  herein. 

Appellant  had  knowledge  of  the  car  service  rules,  hav- 
ing had  trouble  with  the  agent  of  the  appellee  concerning 
their  enforcement  a  year  prior  (Abst.,  8,  9;  Rec.,  30),  Mr. 
Arps  having-  at  that  time  referred  him  to  the  car  service 
rules  (Abst.,  16;  Rec.  42.) 

It  appeared  from  the  undisputed  evidence  in  the  case 
that  the  Chicago  Car  Service  Association  was  a  joint 
agency  of  all  of  the  railroads  within  the  above  described 
territory,  created  for  the  purpose  of  the  uniform  applica- 
tion and  enforcement  of  car  service  rules  within  said  terri- 
tory. That  the  appellee  company  was  one  of  the  members 
of  the  Car  Service  Association.  It  also  appeared  that 
there  are  forty-two  car  service  associations  in  the  United 
States  and  Canada,  all  practically  the  same.  That  prior  to 
the  creation  of  the  car  service  associations,  detention  of 
cars  by  consignees  in  Chicago  would  average  somewhat 
like  seven  or  eight  days  (Abst,  19;  Rec.,  48);  that  when 
the  railroads  attempted  individually  to  correct  these  abuses 
in  various  ways,  there  was  a  want  of  uniformity  in  the 
methods  and  charges  of  the  various  railroads,  and  therefore 
much  comparative  discrimination  (Abst.,  20 ;  Rec.,  49.) 
That  it  was  decided  that  the  different  railroads  should  ap- 
point a  joint  agent  to  have  exclusive  charge  of  the  applica- 
tion, of  car  service  rules,  and  there  was  given  to  the  office 
of  such  agent,  the  title  of  the  Chicago  Car  Service  Associa- 
tion; that  the  application  of  the  rules  of  the  Car  Service 
Association  had  increased  the  capacity  of  the  railroads  in 
the  handling  of  carload  business  about  50  per  cent.  (Abst., 
20;  Rec.  49.) 

It  appeared  from  the  evidence  that  the  period  of  forty- 
eight  hours  allowed  by  the  rules  for  unloading  each  of  the 
cars  of  coke  in  question  was  reasonable.  Mr.  Arps,  agent 
of  appellee,  stated  that  from  his  experience  as  agent  at 
Highland  Park,  that  cars  of  coke  are  easily  unloaded  inside 
of  forty-eight  hours  after  unloading  has  commenced,  (Abst., 
17;  Rec.,  43.) 


159 

Mr.  Sanford,  manager  of  the  Chicago  Car  Service  As- 
sociation, stated  that  about  7,500  cars  of  coal  and  coke  ar- 
rived in  Chicago  each  month;  that  only  about  seven  per 
cent,  of  these  cars  were  detained  beyond  the  free  time  of 
forty-eight  hours ;  that  the  records  of  all  cars  subject  to 
car  service  rules  for  all  the  railroads  centering  in  Chicago 
were  kept  in  his  office  (Abst.,  22;  Rec.,  51.) 

Mr.  Ira  W.  Johnson,  superintendent  for  the  unloading 
and  ordering  of  coal  and  coke  for  Bunge  Brothers,  of  Chi- 
cago, stated  that  from  his  experience  it  usually  took  from 
one  and  one-half  to  two  days  to  unload  a  carload  of  coke ; 
that  about  90  per  cent,  of  the  cars  loaded  with  coke,  are 
unloaded  within  the  prescribed  limit  of  foriy-eight  hours 
(Abst.,  28;  Rec.,  61.) 

Mr.  James  H.  Duffy,  the  teamster  who  unloaded  the 
coke  in  question,  and  who  appeared  as  a  witness  in  behalf 
of  the  appellant,  testified  that  two  days  would  be  a  reason- 
able length  of  time  to  unload  a  car  of  coke  of  50,200  pounds 
(this  was  the  weight  of  the  larger  of  the  two  cars  in  ques- 
tion.) (Abst.,  34;  Rec.,  73.) 

Theodore  M.  Clark,  manager  for  the  John  Middleton 
Coal  and  Coke  Company  at  Highland  Park,  and  who  also 
appeared  as  a  witness  for  the  appellant,  testified  that  a 
carload  of  coke  containing  25  tons,  could  be  unloaded  onto 
a  wagon  in  two  days.  (Abst.,  37.) 

There  is  no  dispute  whatever  as  to  the  reasonableness 
of  the  charge  of  $1.00  per  car  per  day.  Mr.  Sanford 
stated  that  car  service  was  a  charge  made  for  the  use  of 
the  car  and  the  track  upon  which  it  stood,  the  responsibil- 
ity and  risk  of  the  railroad  in  holding  it,  and  the  extra 
expense  to  which  it  was  put  incidentally  in  holding  the 
car,  because  of  liability  to  damage  by  switching,  etc. 
(Abst.,  21;  Rec.,  50.)  'Mr.  Sanford  further  stated  that 
from  data  taken  from  the  annual  reports  of  29  railroads 
for  the  year  1901,  that  the  average  freight  earnings  per 
car  per  day  of  these  29  railroads  was  $2.42,  and  that  the 
average  earning  per  day  of  one  of  appellee's  freight  cars 
was  $2.15  (Abst.,  21 ;  Rec,,  51) ;  that  the  maximum  earn- 
ing capacity  of  a  freight  car  of  the  29  railroads  in  ques- 
tion was  $4.44  (Abst.,  22;  Rec.,  51.) 

Mr.  W.  P.  Marsh,  car  service  agent  of  the  appellee 
company,  whose  duty  it  was  to  take  the  records  of  cars 


i6o 

and  to  make  distribution  of  the  car  equipment  of  the 
appellee  company,  stated  that  the  average  daily  earning 
of  a  freight  car  belonging  to  his  company,  was  $2.15  per 
day.  (Abst.,  27.) 

It  further  appeared  from  the  evidence,  that  in  ship- 
ments of  this  nature,  consignees  always  unloaded  the  cars, 
and  that  the  appellee  company  had  no  facilities  at  High- 
land Park  for  the  storing  of  coal  or  coke  (Abst.,  17; 
Rec.,  44.) 

BRIEF. 

The  Right  of  a  Railroad  Company  to  Recover  Charges 
for  the  Detention  of  Cars  by  Consignees  Who  Fail 
to  Unload  Within  a  Reasonable  Period  Is  Thor- 
oughly Established. 

Miller  vs.  Mansfield,  112  Mass.,  260. 
Barker  vs.  Brown,  138  Mass.,  340. 

Kentucky  Wagon  Co.  vs.  L.  &  N.   R.  R.  Co.,  50 
Am.  and  Eng.  Cases,  90. 

Miller  vs.  Georgia  Railroad  Co.,  88  Georgia,  563. 

Norfolk  &  Western  R.  R.  Co.  vs.  Adams,  90  Va., 
393;  18  S.  E.  R.,  516. 

Kentucky  Wagon  Co.  vs.  O.  &  M.  Ry.  Co.,  97  Ken- 
tucky, 32,  S.  W.  R.,  595. 

Pennsylvania  Co.  vs.  Midvale  Steel  Co.,  Pa.  Sup., 
51,  Atl.,  313. 

Scott  vs.  D.,  L.  &  W.  R.  R.  Co.,  New  York  Sup. 
Ct.,  Mch.  12,  1894. 

Elliot  on  Railroads,  Vol.  4,  Sec.  1567. 

Goff  vs.  Old  Colony  R.  R.  Co.  (R.  L),  22  L.  R.  A., 
532. 

Also  the  following  unreported  cases  to  the  same  ef- 
fect: 

Antrim  vs.  R.  F.  &  P.  R.  R.  Co.,  Law  and  Equity 
Ct.,  Richmond,  Va.,  March  19,  1895. 

Griffith  vs.  K.  C,  Ft.  S.  &  M.  R.  R.,  Circuit  Ct.  of 
Jackson  County,  Mo.,  Feb.,  1896. 


Fuller  vs.  C,  C,  C.  &  St.  L.  Ry.,  Circuit  Ct.  Coles 
County,  111.,  April,  1896. 

Wabash  R.  R.  Co.  vs.  Berry-Howe  Coal  Co.,  Cir- 
cuit Ct.  of  St.  Louis,  June,  1896. 

Blackmore  vs.  C.,  C.,  C.  &  St.  L.  Ry.,  Common 
Pleas,  Hamilton  County,  O.,  Oct.  31,'  1894. 

P.  &  W.  Ry  Co.  vs.  Gilliland,  Common  Pleas,  Butler 
County,  Pa.,  September,  1892. 

C.,  M.  &  St.  P.  Ry.  Co.  vs.  Pioneer  Fuel  Co.,  Dis- 
trict Ct.,  Woodbury  County,  la.,  January,  1902. 

Purcell  vs.  P.,  C.,  C.  &  St.  L.,  Cir.  Ct.  of  Cook  Co., 
Nov.,  1893. 

U.  P.  &  D.  G.  R.  R.  Co.  vs.  Cook,  District  Ct., 
Arapahoe  County,  Colo.,  Mch.  25,  1892,  50  A.  & 
E.  R.  R.  Cases,  89. 

Campbell  vs.  B.  &  O.  R.  R.,  Jefferson  Cir.  Ct.,  W. 
Va.,  Mch.,  1893. 

A  railroad  company  may,  in  its  discretion,  either  store 
goods  in  its  own  warehouse  or  store  same  in  the  car 
in  which  same  were  transported,  where  such  car  af- 
fords the  proper  storage  facilities. 

'Miller  vs.  Mansfield,  112  Mass.,  260. 
Miller  vs.  Georgia  Ry.  Co.,  88  Ga.,  563. 
Gregg  vs.  I.  C.  R.  R.  Co.,  147  111.,  550. 

Wherever  the  question  has  been  raised,  the  weight  of  au- 
thority is  to  the  effect  that  railroad  companies  have  a 
lien  upon  freight  for  damages  which  have  accrued  by 
reason  of  unnecessary  and  unreasonable  delay  of  con- 
signee in  receiving  and  unloading,  and  that  the  rail- 
road company  may  refuse  to  deliver  such  freight  until 
the  reasonable  and  established  charges  which  have  ac- 
crued for  the  detention  and  use  of  the  cars  containing 
such  freight  have  been  paid. 

Ky.  Wagon  Co.  vs.  L.  &  N.  R.  R.,  50  Am.  and  Eng. 
R.  R.  Cases,  90. 

Miller  vs.  Mansfield,  112  Mass.,  260. 
Norway  Plaines  Co.  vs.  B.  &  M.,  1  Gray,  263. 
Miller  vs.  Georgia  R.  R.  Co.,  88  Ga.,  563. 


162 

0.  &  M.  R.  R.  vs.  Bannon,  Common  Pleas,  Louis- 
ville, Ky.,  June  20,  1892. 

Purcell  vs.  P.,  C.,  C.  &  St.  L.  Ry.,  Cook  County 
Cir.  Ct,  Nov.,  1893. 

Fuller  vs.  C.,  C.,  C.  &  St.  L.  Ry.,  Cir.  Ct.,  Coles 
Co.,  111.,  April,  1896. 

Darlington  vs.  Mo.  Pac.,  72  S.  W.,  122. 

Elliot  on  Railroads,  Vol.  4,  Sec.  1567. 

Goff  vs.  Old  Colony  R.  R.  (R.  L),  22  L.  R.  A.,  532. 

Campbell  vs.  B.  &  O.  R.  R.,  Jefferson  Cir.  Ct.,  W. 

Va.,  1893. 
U.   P.  R.   R.   vs.   Cook,  50  Am.   and  Eng.   R.   R. 

Cases,  89. 

A  railroad  company  may  terminate  its  liability  as  a  com- 
mon carrier  by  unloading  and  storing  freight  in  its 
warehouse,  thereby  assuming  the  liability  of  a  ware- 
houseman only,  and  have  a  lien  for  all  storage  charges. 

1.  C.  R.  R.  C.  vs.  Alexander,  20  111.,  404. 
Porter  vs.  Railroad,  20  111.,  407. 

M.  D.  T.  Co.  vs.  Hallock,  64  111,  284. 
R.  R.  Co.  vs.  Friend,  64  111,  303. 
Anchor  Line  vs.  Knowles,  66  111,  150. 
Rothschild  vs.  Railroad  Co,  69  111,  164. 
Calm  vs.  R.  R.  Co,  71  111,  96. 
M.  D.  T.  Co.  vs.  Moore,  88  111,  136. 
Scheu  vs.  Benedict,  116  N.  Y,  510. 

When  the  right  to  a  lien  exists,  the  same  will  not  be  de- 
feated by  the  fact  that  the  amount  claimed  may  be  too 
large,  unless  the  owner  or  party  desiring  the  posses- 
sion of  the  goods  makes  a  tender  of  the  amount  due. 

Russel  vs.  Koehler,  66  111,  459. 
Hoyt  vs.  Sprague,  61  Barb,  491. 
B.  &  L.  H.  Ry.  Co.  vs.  Gordon,  16  U.  C.  L.  B,  283. 
Lowenberg  vs.  A.  &  L.  Ry.  Co,  19  Southwestern, 
1051. 

Schouler  on  Bailments,  Sec.  125. 


In  this  country  demurrage,  even  in  maritime  law,  exists 
aside  from  express  contract,  and  the  ship  owner  has 
a  lien  upon  the  cargo  for  unnecessary  detention. 

9 'Am.  &  Eng.  Ency.  Law,  p.  253,  2d  Ed. 
Porter  on  Bills  of  Lading,  Sec.  356. 
Hargood  vs.  1,310  Tons  of    Coal,  21  Fed.,  681. 
Young  vs.  140,000  Brick,  78  Fed.,  149. 
Whitehouse  vs.  Halstead,  90  111.,  149. 

The  M.  S.  Bacon  vs.  E.  &  W.  Trans.  Co.,  3  Fed., 
344. 

Trans.  Co.  vs.  P.  &  R.  Coal  &  Iron  Co.,  70  Fed., 
268  (aff.  C.  C.  of  A.,  77  Fed.,  919.) 

Railroad  companies  have  a  right  to  adopt  rules  for  enforc- 
ing charges  in  the  nature  of  demurrage  for  the  unrea- 
sonable detention  and  use  of  cars  for  the  storage  of 
unloaded  freight. 

4  Elliott  on  Railroads,  Sec.  1568. 

Kentucky  Wagon  Co.  vs.  O.  M.  Ry.  Co.,  97  Ky. 
(32  S.  W.  Rep.,  595.) 

Miller  vs.  Mansfield,  112  Mass.,  260. 
Miller  vs.  Georgia  R.  R.  Co.,  88  Ga.,  563. 
Beach  on  Railway  Law,  Sec.  924. 

U.  P.   &  D.   G.  Ry.  vs.   Cook,  50  Am.  and  Eng. 
Cases,  89. 

P.  &  W.  Ry.  Co.  vs.  Gilliland,  Common  Pleas,  But- 
ler Co.,  Pa.,  Sept.,  1892. 

Norfolk  £  Western  R.  R.  vs.  Adams  (Va.  Sup.),  18 
S.  E.,  516. 

Penn.  R.  R.  Co.  vs.  Midvale  Steel  Co.  (Pa.),  51  At. 
Rep.,  313. 

Where  a  defendant  has  lawfully  a  lien  on  goods  for  storage, 
although  it  may  have  delivered  part  of  them  without 
insisting  upon  the  lien,  nevertheless,  it  has  a  right  to 
retain  the  residue  of  the  shipment  for  the  amount  due 
upon  the  whole  shipment,  and  the  plaintiff  cannot 
maintain  replevin. 


i64 

Lans  vs.  O.  C.  &  F.  R.  R.  Co.,  14  Gray,  143. 
M.  H.  &  N.  Co.' vs.  Campbell,  128  Mass.,  104. 
Steinman  vs.  Wilkins,  7  W  &  S.,  466. 
McFarland  vs.  Wheeler,  26  Wendell,  467.  * 
Darlington  vs.  Missouri  Pacific,  72  S.  W.,  122. 
Schmidt  vs.  Blood,  9  Wend.,  268,  24  Am.,  Dec.,  143. 

Railroad  companies  are  compelled  by  the  law  of  this  state 
to  furnish  cars  for  the  transportation  of  freight  which 
may  be  offered  by  the  public. 

R.  S.  111.,  Ch.  114,  Sec.  84. 

A  lien  may  exist  by  reason  of  an  implied  contract  for  tne 
same. 

Miller  vs.  Mansfield,  112  Mass.,  260. 
M.  D.  T.  Co.  vs.  Moore,  88  111.,  136. 
I.  C.  R.  R.  vs.  Alexander,  20  111.,  23. 
Darlington  vs.  Mo.  Pac.,  72  S.  W.,  122. 
Barker  vs.  Brown,  138  Mass.,  340. 

Public  policy  demands  that  individual  convenience  should 
be  subordinate  to  the  public  good,  which  requires  ex- 
pedition, regularity,  uniformity,  safety  and  facility  in 
the  movement  of  freight. 

Miller  vs.  Georgia  R.  R.,  88  Ga.,  563. 

N.  &  W.  R.  R.  vs.  Adams  (Va.),  18  S.  E.,  763. 

Kentucky  Wagon  Co.  vs.  L.  &  N.  R.  R.,  50  A.  &  E. 
R.  R.  Case,  90. 

Darlington  vs.  Mo.  Pac.  R.  R.,  72  S.  W.,  122. 

Fuller  vs.  C.,  C.,  C.  &  St.  L.  Ry,  Cir.  Ct.,  Coles 
Co.,  111.,  Apr.,  1896. 

C.,  M.  &  St.  P.  Ry.  Co.  vs.  Pioneer  Fuel  Co.,  Dist. 
Ct.,  Woodbury  Co.,  la. 

Griffith  vs.  K.,  C.,  Ft.  S.  &  M.  R.  R.,  Cir.  Ct.  Jack- 
son Co.,  Mo.,  Feb.,  1896. 

4  Elliott  on  R,  R.,  Sec.  1567. 


Car  service,  or  demurrage  rules,  are  recognized  as  being 
proper  and  lawful  by  the  Federal  Courts. 

Interstate  Commerce  Commission  vs.  D.,  G.  H.  & 
M.  Ry.  Co.,  17  Sup.  Ct.  R.,  986. 

Same  vs.  Same,  21  C.  C.  A.,  103,  74  Fed.,  803. 

Am.    Warehousemens    Assn.   vs.    111.    Cent.    Ry.   7 
Interstate  Com.  Rep.  556. 

Pennsylvania  Millers  Assn.  vs.  P.  &  R.  R.  Co.,  8 
id.,  531. 

ARGUMENT. 

The  decision  of  the  Appellate  Court  finds  as  a  matter 
of  fact,  that  the  time  allowed  by  the  rules  of  the  appellee 
company  for  the  unloading  of  the  coke  from  the  cars  was 
reasonable,  and  that  the  charge  of  one  dollar  per  day  made 
by  the  appellee  for  the  use  or  detention  of  the  car  after  the 
expiration  of  the  free  time  allowed  for  unloading  was  rea- 
sonable. The  only  questions  upon  which  this  court  is 
asked  to  pass  are,  therefore,  ones  of  law. 

It  is  claimed'  by  the  appellee  in  this  case : 

First — That  after  a  reasonable  time  had  been  afforded 
appellant  to  unload  the  cars  of  coke  in  question,  that  the 
appellee  had  a  right  to  make  a  charge  known  as  a  car  ser- 
vice charge  for  the  further  detention  of  the  cars  by  ap- 
pellant. 

Second — That  the  appellee  was  entitled  to  a  lien  upon 
the  contents  of  said  cars  to  secure  such  charge. 

THE  RIGHT  TO  MAKE  THE  CHARGE. 

The  charge  which  the  appellee  claimed  that  it  had  a 
right  to  make  and  enforce  against  the  appellant,  is  neither 
a  transportation  or  terminal  charge,  or  a  subterfuge  for 
adding  to  the  cost  of  transportation  an  amount  in  excess 
of  the  rate  fixed  by  law;  but  is  a  charge,  which,  in  its  es- 
sential character,  is  a  charge  for  storage.  (Miller  vs. 
Mansfield,  112  Mass.,  260.)  When  the  appellee  company 
placed  the  cars  in  question  upon  its  sidetrack  at  Highland 
Park,  in  a  location  accessible  for  unloading  by  the  appel- 


i66 

lant,  and  had  waited  a  reasonable  time  for  the  appellant 
to  unload  same,  it  had  then  fulfilled  its  entire  transporta- 
tion contract  as  a  common  carrier.  The  consideration  of 
the  freight  charges  received  by  it  covered  no  other  or  ad- 
ditional services.  After  the  expiration  of  such  reasonable 
time  for  the  unloading  of  the  cars  in  question,  the  liability 
of  the  railroad  company  as  a  common  carrier  ceased,  and 
its  liability  as  a  warehouseman  commenced. 

In  Interstate  Commerce  Com'n.  vs.  Detroit,  G.  H.  & 
M.  Ry.  Co.,  17  Sup.  Ct.  Rep.,  986,  the  Supreme  Court  of 
the  United  States  approved  the  conclusion  of  the  Circuit 
Court  of  Appeals,  which  was  that  the  railway  transporta- 
tion ends  when  the  goods  reach  the  terminus  or  station 
and  are  there  unshipped,  and  that  anything  the  company 
does  afterward  is  a  new  and  distinct  service,  not  embraced 
in  the  contract  for  railway  carriage.  That  a  railroad  com- 
pany has  a  right  to  terminate  its  liability  as  a  common  car- 
rier by  unloading  and  storing  freight  in  its  warehouse, 
thereby  assuming  the  liability  of  the  warehouseman,  and 
have  a  lien  for  all  such  warehouse  charges,  will  not,  we 
believe,  be  disputed. 

There  was  no  dispute  in  the  evidence  offered  in  this 
case  as  to  the  reasonableness  of  the  time  allowed  by  the 
rules  of  the  appellee  company  for  unloading  the  coke.  The 
time  allowed  by  the  rules  was  forty-eight  hours,  Sundays 
and  legal  holidays  not  included.  Furthermore,  the  forty- 
eight  hours  did  not  commence  until  seven  o'clock  a.  m.  of 
June  21,  1902,  nearly  twenty-four  hours  after  appellant  was 
advised  of  the  arrival  of  the  cars,  at  which  time  there  was 
no  reason  why  he  might  not  have  commenced  unloading; 
so  that  instead  of  forty-eight  hours,  appellant  had  practic- 
ally seventy-two  hours  within  which  to  unload.  As  a  mat- 
ter of  fact,  the  larger  of  said  cars  was  not  unloaded  by  ap- 
pellant until  about  ten  o'clock  on  Monday,  June  30th,  or 
more  than  216  hours  after  same  had  been  placed  for  un- 
loading. If  we  deduct  from  the  above,  the  time  during 
which  the  unloading  was  stopped  by  the  agent  of  appellee, 
it  will  still  be  more  than  200  hours. 

The  conditions  in  railroading  are  very  much  different 
at  the  present  time  from  what  they  were  in  1872,  at  the 
time  the  facts  involved  in  the  Jenkins'  case,  cited  by  ap- 
pellant, occurred,  or  even  in  1882,  when  the  decision  in 
that  case  was  rendered.  Today,  a  very  large  percentage 


i67 

of  the  freight  handled  by  railroads  is  in  the  nature  of  bulky, 
heavy  freight,  and  is  shipped  and  carried  by  the  railroads 
in  carload  lots.  It  is  the  custom  between  those  shipping  in 
carload  lots,  that  same  shall  be  loaded  by  the  consignors, 
and  unloaded  by  the  consignees. 


CARS  AS  WAREHOUSES. 

It  is  the  admitted  law  of  this  state,  that  a  railroad 
company  may  terminate  its  liability  as  a  carrier  by  un- 
loading and  storing  the  freight  in  either  its  own  ware- 
house, or  some  other  warehouse,  and  have  a  lien  for  all 
warehouse  charges.  As"  a  matter  of  fact,  a  railroad  car 
may  be  a  suitable  warehouse  for  many  kinds  of  commodi- 
ties. In  Miller  vs.  Georgia  Railroad  Company,  88  Geor- 
gia, 563,  the  court  says: 

"It  is  well  settled  that  the  carrier,  in  addition  to  its 
compensation  for  the  carriage  of  goods,  has  the  right 
to  charge  for  their  storage  and  keeping,  as  a  ware- 
houseman, for  whatever  time  they  remain  in  its  cus- 
tody after  reasonable  opportunity  has  been  afforded 
the  owner  to  remove  them.  And,  we  think,  where  the 
carrier's  duty  ends  with  the  transportation  of  the  car 
and  its  delivery  to  the  customer,  and  no  further  ser- 
vice is  embraced  in  the  contract,  the  carrier,  after  a 
reasonable  time  has  been  allowed  for  unloading,  is  as 
much  entitled  to  charge  for  the  further  use  of  its  car, 
as  it  would  be  for  the  use  of  its  warehouse.  We  know 
of  no  good  reason  why  it  should  be  restricted  to  the 
latter  method  of  storage.  There  is  no  law  which  in- 
hibits the  use  of  cars  for  this  purpose,  or  which  re- 
quires unloading  and  removal  of  the  goods  to  some 
other  structure  before  any  charge  for  storage  can  at- 
tach. This  method  of  storage  may,  in  many  cases,  be 
as  effectual  as  any  other.  Indeed,  it  may  serve  the 
customer's  interest  and  convenience  much  better  to 
have  the  car  placed  at  his  own  place  of  business,  where 
he  may  unload  it  himself,  or  where  it  may  be  unloaded 
by  purchasers  as  the  goods  are  sold,  thus  saving  dray- 
age  and  other  expenses,  than  to  have  it  unloaded  by 
the  carrier,  and  the  goods  stored  elsewhere  at  the  con- 
signee's expense.  And,  if-  a  customer,  whose  duty  it 


1 68 

is  to  unload,  and  who,  failing  to  do  so  within  a  rea- 
sonable time,  accepts  the  benefit  of  storage  in  a  car, 
by  requesting  or  permitting  the  carrier  to  continue 
holding  it  unloaded  in  service,  and  subject  to  his  will 
and  convenience  as  to  the  time  of  unloading,  he  can- 
not be  heard  to  complain  of  the  method  of  storage  and 
to  deny  the  right  to  any  compensation  at  all  for  this 
service  on  the  ground  that  some  other  method  was 
not  resorted  to.  He  may  insist  that  the  rate  fixed 
shall  not  be  unreasonable  or  excessive,  but  the  law 
cannot  be  invoked  to  declare  that  no  compensation 
whatever  shall  be  charged  for  such  extra  service." 

Undoubtedly,  in  this  case,  it  was  to  the  convenience 
of  the  appellant  that  the  coke  be  left  in  the  car,  rather  than 
unloaded  by  the  appellee  and  stored  in  some  warehouse, 
were  that  possible;  and,  undoubtedly,  it  was  to  the  ad- 
vantage of  the  appellant  that  this  coke  remain  in  the  car 
upon  the  tracks  until  such  time  as  he  was  able  to  have  same 
delivered  direct  from  the  car  to  his  house,  and  also  to  the 
house  of  his  friend,  Mr.  Towner,  to  whom  a  portion  had 
been  sold  by  appellant.  But  it  appeared  from  the  evidence 
that  the  storage  of  coke  is  not  a  common  practice;  that 
there  were,  no  warehouses  for  that  purpose,  and  that  the 
appellee,  railroad  company,  had  no  facilities  for  the  stor- 
ing of  the  coke  at  Highland  Park.  Under  the  circum- 
stances, there  was  nothing  which  the  appellee  could  do, 
except  to  leave  the  coke  in  the  cars  upon  the  sidetrack, 
and  considering  the  class  of  freight,  it  was  a  proper  place 
in  which  to  store  the  same.  It  might  not  have  been  a 
proper  place  to  store  paper,  such  as  was  the  commodity 
mentioned  in  the  Jenkins'  case,  but  certainly  it  was  a 
proper  place  for  the  storage  of  coke  in  bulk. 

In  Miller  vs.  Mansfield,  112  Mass.,  260,  the  commodity 
was  flour.  The  court  said : 

"It  is  not  material  that  the  goods  remained  in  the 
cars,  instead  of  being  put  into  a  storehouse." 

In  Gregg  vs.  I.  C.  R.  R.  Co.,  147  111.,  550,  the  com- 
modity was  corn.  The  court  said : 

"The  railroad  company  was  not  required  to  keep 
the  corn  in  its  cars  on  track  indefinitely,  and  although 
the  consignee  was  in  default  in  not  receiving  the 


169 

freight,  after  reasonable  time  and  opportunity  had 
been  afforded  in  which  to  take  it,  the  carrier  could 
not  abandon  it,  but  was  required  to  exercise  ordinary 
and  reasonable  care  for  its  preservation  as  warehouse- 
man. In  the  exercise  of  such  care  it  might  leave  it  in 
the  cars,  store  it  in  its  own  warehouse,  assuming  the 
liability  of  bailee  or  warehouseman  therefor,  or  it 
might,  with  the  exercise  of  like  degree  of  care  in  se- 
lecting a  responsible  and  safe  depository,  store  the 
grain  in  an  elevator  or  warehouse  at  the  expense  and 
risk  of  the  owner,  and  thereby  discharge  itself  from 
further  liability." 


In  C.  M.  &  St.  P.  Ry.  Co.  vs.  Pioneer  Fuel  Company, 
District  Court  of  Woodbury  County,  Iowa,  the  court, 
speaking  of  the  use  by  the  consignee  of  the  cars  of  the 
railroad  company,  says : 

"It  will  not  be  denied  that  the  plaintiff  could  have 
unloaded  its  merchandise  into  its  warehouses  and  not 
only  have  collected  storage  charges,  but  riave  acquired 
a  lien  therefor.  Upon  what  theory  can  we  distinguish 
between  storing  in  warehouses  and  in  equally  well 
constructed  buildings  on  wheels  ?  *  *  *  We 
think  the  carrier's  duty  ends  with  the  transportation  of 
the  car  and  its  delivery  to  the  customer  and  no  further 
service  is  embraced  in  the  contract.  The  carrier,  after 
a  reasonable  time  has  been  allowed  for  unloading,  is 
as  much  entitled  to  a  charge  for  the  further  use  of  the 
car  as  it  would  be  for  the  use  of  its  warehouse.  We 
know  of  no  good  reason  why  it  should  be  restricted 
to  the  latter  method  of  storing.  There  is  no  law  which 
inhibits  the  use  of  cars  for  this  purpose  or  which  re- 
quires the  unloading  and  removal  of  the  goods  to 
some  other  structure  before  any  charge  for  storage 
can  be  made.  Indeed,  it  may  serve  the  customer's  in- 
terest and  convenience  much  better  to  have  the  car 
placed  at  its  own  place  of  business  where  he  may  un- 
load it  himself  or  where  it  may  be  unloaded  by  pur- 
chasers as  the  goods  are  sold,  thus  saving  drayage 
and  other  expenses,  than  to  have  it  unloaded  by  the 
carrier  and  the  goods  stored  elsewhere  at  the  custom- 
er's expense." 


170 

On  April  13,  1891,  the  Hon.  George  Hunt,  Attorney 
General  of  the  State  of  Illinois,  delivered  to  the  Board  of 
Railroad  and  Warehouse  Commissioners  of  this  state,  a 
written  opinion,  sustaining  the  right  of  a  railroad  company 
to  make  charge  for  an  unnecessary  and  unusual  detention 
of  its  cars.  This  opinion  was  given  in  complaint  No.  64, 
Union  Brewing  Company  of  Peoria  vs.  C,  B.  &  Q.  R.  R. 
Co.,  and  complaint  No.  71,  Lyon  &  Scott  vs.  P.  &  P.  U.  R. 
R.  Co.  We  quote  the  following  language  from  the  opinion 
of  the  attorney  general : 

"Section  5  of  the  act  in  relation  to  receiving,  car- 
rying and  delivering  grain  in  this  state  provides  that 
a  consignee  of  grain,  transported  in  bulk,  shall  have 
twenty-four  hours,  free  of  expense,  after  actual  notice 
of  arrival  in  which  to  remove  the  same  from  the  cars 
of  such  railroad  corporation.  There  would  seem  to 
be  an  implied  right,  under  the  statute,  to  charge  for  a 
longer  detention  than  the  twenty-four  hours  which  the 
statute  names.  Indeed,  no  reason  is  perceived  in  law 
or  justice,  why  an  unreasonable  and  unnecessary  de- 
tention of  cars  by  consignees  should  not  be  paid  for; 
and  the  Car  service  Association  seems,  from  the  proof 
before  us,  to  be  only  an  agency  established  to  keep 
account  of  claims  so  arising  and  enforce  them.  The 
charges  so  made  were  thought  to  be  reasonable,  under 
all  circumstances  *  *  Demurrage  is  an  impor- 

tant subject  which  has  arisen  in  a  practical  way  only 
with  late  years,  and  long  after  our  statute  for  the  regu- 
lation of  railroads  was  passed.  It  does  not,  however, 
follow  that  because  there  is  no  statutory  regulation  of 
the  question  there  is  no  law." 

Elliott,  in  his  work  on  Railroads,  Vol.  4,  Section  1567, 
says: 

"It  has  been  said  that  the  right  to  demurrage  exists 
only  in  maritime  law  and  is  confined  to  carriers  by 
water.  But  while  it  is  probably  true  that  this  right  is 
derived  by  analogy  from  the  maritime  law  as  adminis- 
tered in  America,  the  more  recent  authorities  have  al- 
most unanimously  upheld  the  right  of  railroad  compa- 
nies to  make  demurrage  charges  in  proper  cases.  As 
said  by  one  of  the  courts,  'we  see  no  satisfactory  rea- 
son why  carriers  by  railroads  should  not  be  entitled 


171 

to  compensation  for  the  unreasonable  delay  or  deten- 
tion of  their  vehicles  as  well  as  carriers  by  sea.'  After 
a  carrier  has  completed  its  services  as  such,  it  has  a 
right  to  charge  extra  compensation  for  storing  the 
goods  in  a  warehouse  and  keeping  them  after  the  con- 
signee has  had  a  reasonable  time  in  which  to  remove 
them.  Why,  then,  when  its  duties  as  a  carrier  have 
been  performed,  and  a  reasonable  time  has  elapsed, 
is  it  not  as  much  entitled  to  additional  compensation 
for  the  use  of  its  cars  and  tracks  as  for  the  use  of  its 
warehouse  ?  Certainly  a  customer  whose  duty  it  is  to 
unload,  or  who  unreasonably  delays  the  unloading  of  a 
car  for  his  own  benefit,  ought  not  to  complain  if  he  is 
made  to  pay  a  reasonable  sum  for  the  unreasonable 
delay  caused  by  his  own  act.  But  this  is  not  all.  The 
public  interests  also  require  that  cars  should  not  be 
unreasonably  detained  in  this  way.  Railroad  compa- 
nies as  common  carriers «are  'bound  to  furnish  cars  for 
transportation  of  freight,  and  they  must  have  control 
over  their  cars  in  order  to  perform  their  duties  to  the 
public.  A  car  in  motion  is  a  useful  thing,  but  a  car 
standing  idle  and  unloaded  on  the  track  is  useless,  and 
an  incumbrance.  If  A  be  allowed  to  hold  a  car  un- 
loaded (or  loaded)  at  his  pleasure  or  convenience, 
without  cost  or  charge,  and  thus  deprive  the  railroad 
company  of  the  use  of  its  vehicles  for  transportation 
of  the  freight  of  B  it  is  obvious  that  both  the  railroad 
company  and  the  public  will  suffer  injury.  It  is  also 
well  settled  that  common  carriers  may  make  reason- 
able rules  and  regulations  for  the  convenient  transac- 
tion of  their  business.  It  follows,  from  this  line  of 
reasoning,  that  railroad  companies  may  adopt  and  en- 
force general  rules,  which  are,  or  ought  to  be,  known 
to  their  customers,  making  a  reasonable  charge  for 
the  unreasonable  detention  of  their  cars.  In  a  num- 
ber of  cases  a  charge  of  one  dollar  a  day  for  the  de- 
tention of  a  car  after  the  lapse  of  forty-eight  hours, 
Sundays  and  legal  holidays  excepted,  has  been  held 
not  to  be  unreasonable  as  a  matter  of  law.  So,  a 
charge  of  two  dollars  a  day,  after  the  lapse  of  twenty- 
four  hours,  has  been  enforced  where  the  customer 
knew  of  the  rule  at  the  time  the  shipment  was  made." 


172 
THE  RIGHT  TO  A  LIEN. 

The  Rules  of  Appellant  Were  Necessary. 

In  order  that  railroads  may  properly  perform  their 
duties  both  to  themselves  and  the  public,  it  is  necessary 
that  they  should  formulate  and  enforce  rules  relative  to 
the  conditions  upon  which  freight  will  be  received  and 
transported.  Not  only  have  they  the  right  to  adopt  rules, 
but  the  law  makes  it  an  obligation  that  they  do  so,  the  only 
restriction  being  that  the  rules  adopted  must  be  reasonable. 

The  reasonableness  of  such  rules  and  regulations,  and 
the  manner  of  their  enforcement  in  a  given  case  has,  by 
some  courts,  been  held  to  be  a  question  of  fact  for  the 
jury;  but  the  better  authority  seems  to  be  that  if  any  fixed 
and  permanent  regulations  are  to  be  established  it  must 
be  a  question  of  law  for  the  court  to  decide,  since  one  jury 
in  a  given  case  might  pronounce  a  given  rule  reasonable, 
while  another  jury  in  another  case  might  decide  the  same 
rule  to  be  unreasonable.  Nor  is  there  any  objection,  from 
a  legal  standpoint,  that  common- carriers  may  employ,  for 
the  purpose  of  adopting  and  enforcing  the  rules,  a  joint 
agent.  (4  Elliott  on  Railroads,  Sec.  1568.) 

The  rules  relative  to  the  forty-eight  hour  limit  of  free 
time  for  unloading,  and  the  charge  of  one  dollar  per  day 
thereafter,  are  found  by  the  Appellate  Court  from  the  evi- 
dence in  this  case  to  have  been  reasonable.  It  appeared 
that  the  charge  of  one  dollar  per  day  was  less  than  one-half 
of  the  average  daily  earnings  of  the  freight  cars  of  the  ap- 
pellee for  the  last  year,  and  considerably  less  than  one-half 
of  the  average  daily  earnings  per  car  per  day  of  twenty- 
nine  of  the  largest  railroads  in  the  country.  The  object  of 
these  rules  was  not  that  the  railroad  company  might  de- 
rive profit  from  the  use  of  its  cars  as  storehouses,  but  that 
consignees  might  be  induced  by  reason  of  these  rules  to 
promptly  unload  the  cars,  and  thereby  permit  the  railroad 
company  to  again  take  same  into  its  service  where  they 
were  more  than  twice  the  value  than  when  standing  upon  a 
side  track  and  used  merely  as  a  storehouse. 

In  Miller  vs.  Georgia  Railroad  Co.,  88  Ga.,  563,  the 
court,  speaking  of  a  similar  rule,  said : 

"The  rule  in  question,  we  think,  falls  clearly  within 
the  scope  and  power  of  the  common  carrier  to  adopt 


173 

and  enforce  any  reasonable  regulation  for  the  conduct 
of  its  business,  the  purpose  and  effect  of  which  is  the 
protection  of  the  carrier  and  the  benefit  of  the  public. 
It  seeks  to  prevent  diversion  and  detention  of  cars 
from  the  legitimate  work  of  transportation,  as  well  as 
secure  compensation  for  services  not  otherwise  paid 
for,  by  prescribing,  in  cases  where,  by  contract,  or 
custom,  the  carrier  is  under  no  duty  to  unload  the  cars, 
but  they  are  to  be  unloaded  by  the  customer,  a  rate 
per  diem,  in  the  nature  of  a  charge  for  storage,  to  be- 
gin after  the  cars  have  been  delivered  to  the  customer 
or  placed  at  his  disposal  for  unloading;  and  such  a 
regulation  cannot  be  regarded  as  unreasonable,  so 
long  as  a  reasonable  time  is  allowed  for  unloading, 
and  so  long  as  the  charge  for  the  use  of  the  cars  be- 
yond that  time  is  not  excessive.  The  law  compels  the 
carrier  to  receive  the  goods  of  the  public  and  to  trans- 
port and  deliver  them  within  a  reasonable  time.  To 
do  this,  it  is  necessary  that  the  means  of  transporta- 
tion shall  be  under  the  carrier's  control,  and  that,  after 
the  duty  of  carriage  has  been  performed,  its  vehicles 
shall  not  be  converted  into  freight  houses  at  the  will 
of  consignees,  to  remain  such  indefinitely,  and  without 
compensation.  If  no  check  could  be  placed  upon  such 
detention,  it  is  plain  that  the  business  of  transportation 
would  be  at  the  mercy  of  private  interest  or  caprice, 
and  that  carriers  thus  hampered  in  their  facilities,  and 
unable  to  foresee  the  time  or  extent  to  which  their 
vehicles  would  be  diverted  from  the  work  of  carriage, 
could  not  provide  properly  for  the  demands  of  traffic, 
or  perform  with  dispatch  their  legitimate  function.  It 
would  place  upon  the  carrier  the  burden  and  expense 
of  supplying  numerous  vehicles  not  needed  for  the 
hauling  of  freights,  thus  requiring  it  to  provide  extra 
facilities,  as  well  as  to  render  extra  service,  without 
compensation  beyond  that  received  for  transportation. 
It  would  result  in  the  accumulation  of  cars  on  the  car- 
*  rier's  tracks,  and  the  obstruction  in  a  greater  or  less 
degree  of  the  movement  and  unloading  of  trains." 

In  F.  &  W.  Ry.  Co.  vs.  Gilliland,  Common  Pleas,  But- 
ler County,  Pennsylvania,  the  court  said : 

"We  can  conceive  of  no  more  necessary  or  reason- 
able regulation  than  the  one  we  are  asked  to  enforce. 


The  need  of  such  a  regulation  is  apparent  from  the 
facts  in  this  case.  The  rules  adopted  in  this  district 
are  reasonable  and  clearly  necessary,  and  in  no  way 
detrimental  to  shippers,  but  wholly  in  their  interest. 
The  common  carrier  is  compelled  to  accept  goods  for 
transportation,  and  it  would  be  manifestly  unjust  to 
not  enforce  a  corresponding  duty  on  the  shipper,  to 
not  negligently  and  unnecessarily  detain  or  otherwise 
deprive  the  common  carrier  of  the  use  of  the  vehicles 
which  the  law  thus  places  at  his  command." 

In  N.  &  W.  R.  R.  R.  Co.  vs.  Adams  (Va.  S.  C.),  18 
S.  E.  Rep.,  673,  it  was  said : 

"'The  railroad  company,  as  a  common  carrier,  i-s 
bound  to  furnish  cars  for  transportation  of  freight; 
and  they  must  have  control  over  their  cars  in  order 
to  perform  their  duties  to  the  public.  A  car  in  mo- 
tion is  a  useful  thing,  but  a  car  standing  idle  and 
unloaded  on  the  track  is  useless  and  an  incumbrance. 
*  *  *  It  is  well  settled  in  this  state  and  in  other 
states,  that  a  common  carrier  may  make  reasonable 
rules  and  regulations  for  the  convenient  transaction 
of  business  between  itself  and  those  dealing  with  it, 
either  as  passengers  or  as  shippers;  that  this  rule 
(referring  to  the  car  service  rules)  is  reasonable  and 
proper  has  been  decided  in  a  number  of  states." 


IT  IS  NECESSARY  THAT  THE  RULES  BE  GENERAL 
IN  THEIR  APPLICATION. 

It  appeared  from  the  evidence  in  this  case  that  within 
the  territory  embraced  in  what  is  known  as  the  Chicago 
Car  Service  territory,  but  one  set  of  car  service  rules  are 
used  by  all  of  the  railroads  operating  within  that  territory. 
The  application  of  these  rules  is  thus  made  uniform,  and 
discrimination,  which  would  be  unlawful,  is  obviated. 
Furthermore,  the  enforcement  of  the  rules  in  question  is 
left  in  the  hands  of  the  car  service  manager,  who  is  not 
the  representative  of  any  one  railroad,  but  is  equally  re- 
sponsible to  and  the  representative  of  all  the  roads  in  the 
association.  It  thus  follows  that  the  construction  put  upon 
the  various  rules  in  their  enforcement  by  the  several  rail- 


175 

roads  must,  necessarily,  be  the  same.  We  cannot  conceive 
of  an  arrangement  which  it  would  be  better  to  adopt,  and 
which,  at  the  same  time,  would  protect  both  the  interests 
of  the  railroads,  the  interests  of  the  shippers  and  con- 
signees and  the  interests  of  the  public  at  large. 

In  Kentucky  Wagon  Co.  vs.  L.  &  N.  R.  R.  Co.,  50 
Am.  &  Eng.  R.  R.  Cas.,  90,  Judge  Toney  said  : 

"No  one  consignee,  if  the  rule  be  a  reasonable  one, 
in  its  application  to  all  shippers,  in  the  ordinary  con- 
duct of  traffic  business,  has  the  right  to  advance  the 
peculiar,  rare  and  exceptional  circumstances  of  his 
particular  case  to  justify  his  violation  of  the  rule  or 
establish  a  common  carrier's  liability  for  not  relaxing 
it  as  to  him.  Shippers  and  consignees  must  adjust  the 
possible  exigencies  of  their  business  in  dealing  with  a 
common  carrier,  whose  functions,  as  we  shall  here- 
after see,  are  of  a  quasi  public  character,  affecting  the 
general  shipping  interests  of  the  country,  to  the  gen- 
eral, ordinary,  reasonable  rules  of  traffic,  adopted  by 
common  carriers,  for  the  convenience  and  benefit  of 
all  alike." 

In  Darlington  vs.  Missouri  Pacific  Railway  Company, 
72  Southwestern,  120,  the  court  says : 

"In  order  to  fulfill  the  chief  end  of  their  creation, 
viz. :  the  service  of  the  public  as  common  carriers, 
they  should  be  left  free  to  establish  general  and  rea- 
sonable rules  and  regulations  governing  the  delivery 
of  freight  and  charges  for  the  unnecessary  or  unrea- 
sonable detention  of  their  cars  by  consignees.  It  is  a 
matter  of  the  highest  public  interest  that  they  should 
be  accorded  this  right  and  power.  Individual  con- 
venience should  be  subordinate  to  the  public  good, 
which  demands  expedition,  regularity,  uniformity, 
safety  and  facility  in  the  movement  of  the  freight  of 
the  country,  which  must  of  necessity  be  materially 
obstructed  if  individual  consignees  are  allowed,  with- 
out let  or  hindrance,  to  convert  freight  cars  on  their 
arrival  with  cargoes  of  freight  upon  their  side-tracks 
into  warehouses  for  the  storage  of  freight  at  the  sug- 
gestion of  their  convenience  or  interest." 


176 

PUBLIC  POLICY    REQUIRES  THAT  THE  RIGHT 
OF  LIEN  BE  GIVEN. 

Railroads,  being  quasi  public  corporations,  receiving 
their  rights  and  franchises  from  the  public,  are  under  cer- 
tain obligations  to  the  public  which  they  must  perform. 
The  innumerable  ramifications  of  the  combined  railroad 
systems  extend  to  every  nook  and  corner  of  this  country, 
and  the  loaded  cars  of  almost  any  railroad  may  be  found, 
at  one  time  or  another,  upon  the  switches  or  sidetracks  of 
nearly  every  city  of  any  commercial  importance  on  the 
continent.  They  are  transferred  from  one  carrier  to  an- 
other until  their  final  destination  is  reached.  This  is  in 
the  interest  of  commerce.  It  facilitates  and  lessens  the 
expense  of  commerce  and  transportation. 

In  Griffith  vs.  K.  C,  Ft.  S.  &  M.  R.  R.  Co.  (C.  C.  of 
Jackson  Co.,  1896),  the  court,  stating  the  obligation  of 
the  railroads  to  the  public,  said: 

"A  railroad  cannot  meet  the  ordinary  demands  of 
transportation  if  its  cars  can  be  tied  up  indefinitely  at 
the  pleasure  of  the  individual  shippers.  The  indi- 
vidual shippers  and  the  company  are  not  the  only 
ones  interested.  The  public  convenience  and  trade 
would  be  seriously  interfered  with  if  each  individual 
shipper  were  permitted  to  retain  the  use  of  cars  and 
tracks  for  storage  purposes  beyond  a  reasonable  time. 
'Car  famines'  and  consequently  congestion  of  traffic 
would  inevitably  result  from  such  a  rule." 

In  Fuller  vs.  C.,  C.,  C.  &  St.  L.  R.  R..  Co.  (Cir.  Ct.  of 
Coles  County,  Illinois),  Judge  Wright  said: 

"The  principal  object  of  the  rule  of  the  company 
doubtless  is  not  to  secure  the  small  charges  made  for 
the  use  of  cars,  but  to  secure  to  themseJves,  and  to 
the  public,  the  use  of  the  cars." 

In  Miller  vs.  Georgia  Railroad,  supra,  the  court,  in 
commenting  upon  the  effect  upon  the  public,  where  con- 
signees were  allowed  to  retain  cars  to  be  unloaded  at  their 
pleasure,  said : 

"Not  only  would  loss  ensue  to  the  carrier,  but  con- 
signees in  general  and  the  public  at  large  must  suffer 


177 

seriously  from  this  hindrance  to  the  due  and  regular 
course  of  transportation.  In  this  matter  the  public 
have  rights  paramount  to  those  of  any  individual  ship- 
per or  class  of  individuals,  and  the  business  of  the 
common  carrier  must  be  so  conducted  so  as  to  sub- 
serve the  general  interest  and  convenience.  Especial- 
ly is  this  true  as  to  railroads  in  view  of  the  important 
franchises  granted  to  them  by  the  public,  and  the  use 
of  control  thus  acquired  of  highways  on  which  the 
commerce  of  the  country  is  so  largely  dependent." 

In  C,  M.  &  St.  P.  Ry.  Co.  vs.  Pioneer  Fuel  Company, 
supra,  the  court  said  : 

"But  there  are  other  considerations  in  regard  to 
railroads.  If  its  vehicles  can  thus  be  indefinitely  tied 
up  and  converted  into  warehouses,  it  will  take  twice 
or  three  times  the  number  of  cars  to  accomplish  the 
work  of  transportation,  and  increased  trackage  and 
terminal  facilities  in  proportion.  This  would  neces- 
sitate a  large  and  unnecessary  increase  of  the  capital 
invested  and  a  corresponding  increase  of  freight 
charges,  and  thus  the  rights  of  the  public  to  an  eco- 
nomical service  would  be  violated.  If  the  rule  con- 
tended for  by  defendants  shall  obtain,  no  reasonable 
man  will  expect  the  railroad  company  to  provide  the 
additional  rolling  stock  and  terminal  facilities  for 
nothing,  and  if  the  parties  who  render  the  same  neces- 
sary and  who  get  the  use  of  the  extra  cars  and  track- 
age cannot  be  made  to  pay  for  the  same  the  general 
public  will  have  to  do  so  in  increased  freight  rates." 

In  N.  &  W.  R.  R.  vs.  Adams  (Va.),  18  S.  E.  Rep.,  763, 
speaking  upon  this  subject,  the  court  said : 

"If  A  be  allowed  to  hold  a  car  unloaded  at  his  pleas- 
ure or  convenience,  without  cost  or  charge,  and  thus 
deprive  the  railroad  company  of  the  use  of  its  vehicle 
for  transportation  of  the  freight  of  B,  it  is  evident  that 
both  the  railroad  company  and  the  shipping  public 
will  suffer  injury.  *  *  *  The  evidence  in  the  rec- 
ord is  that  the  use  of  the  car  is  much  more  valuable  to 
the  company  than  the  charge  of  one  dollar  per  day ; 
and  it  is  manifest  that,  if  cars  can  be  delayed  and  held 
by  shippers  or  consignees  for  months  (as  the  record 


I78 

shows  was  done  in  this  case,  in  some  instances),  with- 
out any  regulation  that  would  be  operative,*  the  busi- 
ness of  the  railroad  and  the  public  service  must 
necessarily  suffer." 

In  Kentucky  Wagon  Co.  vs.  L.  &  N.  R.  R.  Co.,  supra, 
it  is  said : 

"It  is  important  to  the  proper  discharge  of  its  duty 
to  the  public  that  it  (the  railroad  company)  should 
not  be  disturbed  by  any  special  consignee  or  set  of 
consignees  by  the  wrongful  withdrawal  of  its  rolling 
stock  from  its  main  lines,  to  subserve  their  private 
convenience  or  interest.  It  is  important,  in  order  that 
the  railroad  common  carriers  may  always  know,  with 
certainty,  their  own  capacity  for  meeting  the  custom- 
ary demands  of  traffic  along  their  lines,  and  of  that 
coming  to  them  from  other  lines.  How  can  these  im- 
portant conditions  be  supplied  or  exist  if  the  amount 
of  rolling  stock  at  the  command  of  the  railroad  com- 
mon carriers  of  the  country  must  always  depend  upon 
the  peculiar  business  exigencies  of  individual  con- 
signees who  may  find  it  either  convenient  or  profitable 
to  convert  freight  cars,  when  once  they  have  them 
upon  their  own  side-tracks,  into  warehouses." 

In  Darlington  vs.  Mo.  Pac.  R.  R.  Co.  (St.  L.  Ct.  of 
App.),  S.  W.  Rep.,  Feb.,  1903,  the  court  says : 

"Without  the  right  of  making  and  enforcing  rea- 
sonable rules  and  regulations  as  to  the  delivery  of 
freight  and  the  detention  of  cars  by  consignees,  rail- 
roads would  be  at  the  mercy  of  individual  shippers. 
Individual  convenience  should  be  subordinate  to  the 
public  good,  which  demands  expedition,  regularity, 
uniformity,  safety  and  facility  in  the  movement  of  the 
freight  of  the  country  which  must  necessarily  be  ma- 
terially obstructed  if  individual  consignees  are  al- 
lowed, without  let  or  hindrance,  to  convert  freight 
cars  on  their  arrival  with  cargoes  of  freight,  upon 
their  side-tracks,  into  warehouses  for  the  storage  of 
freight  at  the  suggestion  of  their  convenience  or  in- 
terest. As  we  have  seen,  railroads  are  a  public  neces- 
sity, the  general  welfare  of  the  country  being  depend- 
ent upon  their  untrammeled  interconnection  and  un- 


179 

trammeled  liberty  to  accomplish  the  legitimate  public 
purposes  of  their  organization.  Promptness,  regular- 
ity and  safety  in  the  transportation  of  passengers  and 
freight  are  essential  requisites  to  the  successful  admin- 
istration of  the  railroad  common  carrier's  system  of 
the  country.  These  characteristics  or  qualities  are 
demanded  by  the  public  interest.  Regularity  and  sys- 
tem in  the  movement  of  their  cars,  in  the  handling  of 
freight,  both  in  receiving,  transporting  and  delivering 
it,  so  that  the  public  can  know  what  to  expect  and 
what  it  can  depend  upon,  are  demanded  of  railroads 
by  law  and  by  public  policy.  But  how  can  this  be  ex- 
pected of  railroads  if^their  rolling  stock  may  be  tied 
up  and  water-logged  upon  the  private  side-tracks  and 
switches  of  private  consignees  to  serve  as  store-rooms 
and  warehouses  for  their  freight,  without  any  power 
on  the  part  of  the  railroad  companies  to  enforce  rea- 
sonable rules  against  such  consignees,  requiring  dili- 
gence in  the  unloading  and  re-delivery  of  their  cars. 
These  public  carriers  rely  upon  the  rolling  stock  to 
meet  the  demands  of  the  volume  of  business  which 
they  have  to  carry.  How  can  they  insure  to  consignees 
and  shippers  in  general  and  to  the  public  that  facility 
of  commercial  interchange  which  they  are  required  to 
afford  both  by  charters  and  by  public  law?  How  can 
they  furnish  cars  and  transportation  to  shippers  in 
general,  and  discharge  the  volume  of  traffic  business 
of  their  respective  systems,  if  their  rolling  stock  can 
be  locked  up  in  the  private  yards  of  special  con- 
signees? How  can  such  carriers  know  with  any  rea- 
sonable degree  of  certainty  whether  their  rolling  stock 
at  any  given  time  is  or  will  be  fully  up  to  the  demands 
of  the  business  along  their  lines?  Promptness,  uni- 
formity and  safety  in  the  railroad  traffic  business  of 
the  country  can  only  be  secured  by  the  adoption  and 
strict  enforcement  by  railroad  companies  of  uniform 
and  reasonable  rules  and  regulations,  which  shall  be 
binding  upon  all  shippers  and  consignees  alike,  with 
reference  to  the  reception,  transportation  and  delivery 
of  freight." 

IMPLIED  CONTRACT  FOR  A  LIEN. 

Appellant,  in  his  brief,  takes  the  position  that  in  this 


i8o 

state  a  railroad  company  can  acquire  a  lien  upon  freight 
to  secure  the  payment  of  car  service  charges  only  when 
a  provision  of  the  statute  gives  it  that  right,  or  where  there 
is  an  express  agreement  therefor  between  the  railroad  and 
the  owner  against  whose  property  it  is  sought  to  enforce 
such  lien,  and  cites  in  support  of  his  position  the  case  of 
C.  &  N.  W.  Ry.  Co.  vs.  Jenkins,  103  111.,  588. 

The  position  taken  by  appellant  herein  is  not  support- 
ed by  the  Jenkins  case,  as  the  language  in  that  case  is  as 
follows : 

"Where  the  law  gives  no  lien,  neither  party  can 
create  it  without  the  consent  or  agreement  of  the 
other." 

This  is,  no  doubt,  correct.  While  it  is  true  that  in  the 
Jenkins  case,  the  court  decided  that  under  the  facts  in 
that  case,  the  law  gave  no  lien,  still,  as  we  will  hereinafter 
endeavor  to  show,  the  court,  in  rendering  its  opinion  in 
that  case,  was  guided  by  its  belief  that  the  maritime  law 
gave  no  right  to  a  lien  for  demurrage,  except  as  the  same 
was  expressly  stated  in  the  contract  of  affreightment.  In 
this  particular  it  appears  from  the  cases  of  Hawgood  vs. 
1310  Tons  of  Coal,  21  Fed.  Rep.,  and  the  other  cases  cited 
by  us,  that  the  right  to  demurrage  does  exist  at  common 
law,  irrespective  of  whether  or  not  a  stipulation  for  the 
same  expressly  appears  in  the  contract  of  affreightment. 

As  heretofore  stated,  the  conditions  surrounding  com- 
merce, and  especially  the  railroad  branch  of  commerce, 
have  changed  much  in  the  last  few  years,  and  many  ele- 
ments, heretofore  unknown,  have  been  introduced.  It  ap- 
pears from  the  evidence  herein,  and  it  is  also  a  matter  of 
common  knowledge,  that  railroads  frequently  have  suf- 
fered much  from  the  wrongful  and  unnecessary  detention 
of  their  cars  and  the  use  of  the  same  and  the  tracks  upon 
upon  which  they  stand,  for  storage  purposes.  This  is,  no 
doubt,  due  partly  to  the  rush  and  growth  of  business,  but 
also  largely  to  the  policy  of  consignees  in  failing  to  pro- 
vide yard  room  and  warehouses,  and  to  the  fact  that  they 
find  it  easier  and  cheaper  to  keep  goods  stored  in  cars  than 
to  unload  same  into  warehouses,  and,  then  re-handle  a  sec- 
ond time.  This  is  an  abuse  with  which  the  railroads  have 
been  struggling  for  years,  and  while  willing,  as  is  shown 
by  the  reasonableness  of  the  rules  and  regulations  intro- 


r8i 

duced  herein,  to  give  the  amplest  time  for  the  unloading  of 
cars,  they  have  been,  so  far,  unable  to  prevent  this  obstruc- 
tion to  their  business,  except  by  making  a  charge  of  a 
nominal  sum  per  day  for  such  detention  and  endeavoring 
to  collect  the  same. 

This  condition  of  affairs  is  so  well  known  that  this 
court  may  almost  take  judicial  knowledge  of  the  same,  and 
it  is  asked  to  meet  and  deal  with  these  comparatively  new 
conditions  in  railroad  transportation,  not  in  any  narrow 
or  technical  spirit,  nor  in  accordance  with  any  rigid  or 
technical  rules  which  may  have  been  established  before 
railroads  existed,  or  while  they  were  yet  in  their  infancy, 
or  which  may  have  been  established,  as  in  the  Jenkins  case, 
to  meet  the  requirements  "of  water  navigation,  but  to  meet 
the  same  in  the  spirit  of  Chief  Justice  Shaw,  in  the  opinion 
given  by  him  in  the  Norway  Plains  vs.  B.  &  M.  R.  R.  Co., 
1  Gray,  263,  in  which  he  says : 

"The  liability  of  carriers  of  goods  by  railroads,  the 
grounds  and  precise  extent  and  limits  of  their  respon- 
sibility, are  coming  to  be  subjects  of  great  interest  and 
importance  to  the  community.  It  is  a  new  mode  of 
transportation,  in  some  respects  like  the  transporta- 
tion by  ships,  lighters  and  canal  boats  by  water,  and 
in  others  like  that  by  wagons  on  land;  but  in  some 
respects  it  differs  from  both.  Though  the  practice  is 
new,  the  law,  by  which  the  rights  and  obligations  of 
owners,  consignees  and  of  the  carriers  themselves,  are 
to  be  governed,  is  old  and  well  established.  It  is  one 
of  the  great  merits  and  advantages  of  the  common 
law  that,  instead  of  a  series  of  detailed  practical  rules, 
established  by  positive  provisions,  and  adapted  to  the 
precise  circumstances  of  particular  cases,  which  would 
become  obsolete  and  fail  when  the  practice  and  course 
of  business  to  which  they  apply  should  cease  or 
change ;  the  common  law  consists  of  a  few  broad  and 
comprehensive  principles,  founded  on  reason,  natural 
justice,  and  enlightened  public  policy,  modified  and 
adapted  to  the  circumstances  of  all  the  particular  cases 
which  fall  within  it.  These  general  principles  of  equity 
and  policy  are  rendered  precise,  specific  and  adapted 
to  practical  use  by  usage,  which  is  the  proof  of  their 
general  fitness  and  common  convenience,  but  still 
more  by  judicial  exposition ;  so  that,  when  in  a  course 


1 82 

of  judicial  proceedings  by  tribunals  to  the  highest  au- 
thority, the  general  rule  has  been  modified,  limited 
and  applied  according  to  particular  cases;  such  judi- 
cial exposition,  when  well  settled  and  acquiesced  in, 
becomes  itself  a  precedent,  and  forms  a  rule  of  law  for 
future  cases,  under  like  circumstances. 

"The  effect  of  this  expansive  and  comprehensive 
character  of  the  common  law  is,  that  whilst  it  has  its 
foundation  in  the  principles  of  equity,  natural  justice, 
and  that  general  convenience  which  is  public  policy, 
although  these  general  considerations  would  be  too 
vague  and  uncertain  for  practical  purposes,  in  the 
various  and  complicated  cases  of  daily  occurrence,  in 
the  business  of  an  active  community,  yet  the  rules  of 
common  law,  so  far  as  cases  have  arisen  and  practices 
actually  grown  up,  are  rendered  in  a  good  degree  pre- 
cise and  certain,  for  practical  purposes,  by  usage  and 
judicial  precedent.  Another  consequence  of  this  ex- 
pansive character  of  the  common  .law  is,  that  when 
new  practices  spring  up,  new  combinations  of  facts 
arise,  and  cases  are  presented  for  which  there  is  no 
precedent  in  judicial  decision,  they  must  be  governed 
by  the  general  principle,  applicable  to  cases  most 
nearly  analogous,  but  modified  and  adapted  to  new 
circumstances,  by  considerations  of  fitness  and  pro- 
priety, of  reason  and  justice,  which  grew  out  of  those 
circumstances1.  The  consequence  of  this  state  of  law 
is,  that  when  a  new  practice  or  new  course  of  business 
arises,  the  rights  and  duties  of  parties  are  not  without 
a  law  to  govern  them;  general  considerations  of  rea- 
son, justice  and  policy,  which  underlie  the  particular 
rules  of  the  common  law,  will  still  apply,  modified  and 
adapted,  by  the  same  considerations  to  the  new  cir- 


There  are  many  instances  where  the  common  law 
gives  or  allows  a  lien  in  cases  where  no  specific  agreement 
for  the  same  exists,  such  as  the  liens  of  inn-keepers,  agis- 
ters,  carriers,  bailees  and  warehousemen. 

Whoever  uses  the  property  of  another  must  expect  to 
pay  whatever  that  use  is  reasonably  worth,  and  it  would 
be  a  great  hardship  for  railroads  to  be  compelled  to  leave 
their  cars  upon  side-tracks  and  in  the  possession  of  con- 


signees  until  the  latter  saw  fit  to  unload  and  release  them, 
and  were  not  permitted  to  collect  a  reasonable  charge 
therefor.  But  in  order  to  collect  these  charges,  which  are 
due  in  many  cases  from  irresponsible  consignees,  the  rail- 
roads claim  the  right  to  demand  that  payment  be  made  of 
all  charges  which  have  accrued  before  they  permit  the  cars 
to  be  unloaded.  In  other  words,  they  claim  a  lien  upon 
the  contents  of  the  car,  not  only  for  the  freight,  but  for 
any  car  service  charges  which  may  have  accru'ed  up  to  the 
time  the  consignee  signifies  a  willingness  to  unload. 

It  is  a  well  known  fact  that  the  sale  and  transfer  of 
property,  by  assignment  of  the  bill  of  lading,  while  en- 
route,  in  carload  lots,  is  a  matter  of  everyday  occurrence. 
The  railroad  company  which  accepts  a  car  of  coal  or  coke 
at  Pittsburg,  cannot  with  any  certainty  know  the  final 
destination  of  the  car  in  question.  And  if  a  railroad  com- 
pany is  to  be  protected  from  abuse  by  consignees  in  the 
unlawful  detention  of  cars  for  unnecessary  lengths  of  time, 
it  is  not  sufficient  that  the  company  may  have  the  right  to 
sue  the  final  owner  in  assumpsit.  It  must,  in  addition, 
have  the  benefit  of  the  warehouseman's  lien  for  the  ser- 
vice which  it  has  rendered  as  a  warehouseman.  A  suit  in 
assumpsit  would,  many  times,  be  absolutely  unavailing, 
for  the  reason  that  judgments  rendered  could  not  be  col- 
lected on  account  of  the  insolvency  or  irresponsibility  of 
the  judgment  debtor. 

The  life  of  a  railroad  company  is  naturally  in  its  roll- 
ing stock.  If  the  company  is  deprived  of  the  use  of  its 
cars,  the  vast  amounts  of  money  invested  in  the  purchase 
of  right  of  way,  the  maintenance  of  track,  the  building  and 
operation  of  locomotives,  and  the  necessary  machine  shops 
for  repairing  the  same,  is  made  unremunerative ;  and  the 
shipping  public  will  have  to  pay  higher  rates  of  traffic  if 
one-half  of  the  freight  cars  of  our  railroads  are  needlessly 
detained— idle  upon  side-tracks. 

It  appeared  from  the  evidence  in  this  case  that  appel- 
lant was  familiar  with  the  rules  of  appellee  to  the  effect 
that  a  charge  would  be  made  for  the  detention  of  the  cars 
longer  than  the  free  time  allowed  by  the  rules,  and  that  a 
lien  would  be  claimed  upon  the  contents  of  the  cars  to  se- 
cure such  charge.  Such  rule  being  known  to  appellee, 
and  not  being  unreasonable,  it  will  be  presumed  that  he 
agreed  to  be  bound  by  same  when  he  detained  the  car  an 
unreasonable  length  of  time. 


i84 

If  the  appellee  herein  is  correct  in  its  contention  that 
after  the  expiration  of  a  reasonable  time,  within  which  to 
unload  cars,  its  liability  as  a  carrier  ceases,  and  that  of 
warehouseman  begins,  and  as  it  is  admitted  that  if  the  rail- 
road company  were  to  transfer  the  contents  of  the  car  in 
question  to  a  warehouse  owned  by  itself,  it  would  be  en- 
titled to  charge  compensation  therefor,  and  have  a  lien  to 
secure  such  compensation,  we  can  see  no  reason  why  it  is 
not  entitled  to  a  lien  when  its  cars  are  used  as  warehouses. 
And  this,  particularly  in  view  of  the  decision  of  our  Su- 
preme Court  in  Gregg  vs.  I.  C.  R.  R.  Co.,  supra,  to  the 
effect  that  for  many  classes  of  freight  a  car  may  be  as 
suitable  a  warehouse  as  any  other. 

In  Griffith  vs.  K.  C.  &  Ft.  S.  R.  R.  Co.,  supra,  the 
court  said : 

"The  shipper,  by  his  failure  or  neglect  to  receive 
and  unload  the  cargo,  compels  the  railroad  company 
to  retain,  house  and  care  for  his  goods  beyond  the 
time,  when  by  the  terms  of  the  contract  of  carriage 
they  are  bound  to  do  so.  For  this  extra  service  the 
railroad  company  is  entitled  to  compensation.  If  the 
car  is  unloaded  and  the  goods  placed  in  a  warehouse 
the  company  has  an  undoubted  lien  for  such  extra 
compensation.  Now,  under  the  rule  of  the  company, 
of  which  the  shipper  has  notice,  the  car  is  made  the 
storage  house  for  the  goods  after  a  reasonable  time 
has  been  given  the  shipper  to  unload.  Is  not  this  rule 
and  the  knowledge  thereof  on  the  part  of  the  shipper 
equivalent  to  an  agreement  on  the  part  of  both  parties 
that  the  goods  shall  be  considered  'stored'  in  the  car, 
the  same  as  if  in  a  warehouse,  and  if  so,  does  not  the 
lien  for  charges  follow  as  a  matter  of  law?" 

In  Fuller  vs.  C.,  C.,  C.  &  St.  L.  R.  R.  Co.,  supra,  Judge 
Wright  says : 

"It  is  a  familiar  principle  of  common  law  that  any 
one  who  has  bestowed  any  particular  service  or  care 
upon  any  article  of  property  which  has  been  confided 
to  his  possession  for  such  purpose,  has  a  lien  upon  it 
•  for  any  reasonable  charge  in  respect  to  such  service  or 
care.  It  is  difficult  to  see  why  the  facts  in  the  present 
case  do  not  call  for  the  application  of  this  familiar 
principle.  It  is  difficult  to  imagine  why  a  railroad 


company  having  bestowed  a  care  upon  property  for 
which  it  is  conceded  to  be  entitled  to  a  reasonable 
charge  in  that  respect  should  be  excepted  from  the 
general  rule  which  entitles  parties  performing  such 
service  to  a  lien  upon  the  property." 

In  N.  &  W.  R.  R.  Co.  vs.  Adams,  18  S.  W.,  673,  the 
court  says : 

"If  the  consignee  is  fully  advised  at  the  time  of  the 
shipment  that  the  company  has  no  agent  at  a  par- 
ticular station,  or  the  place  to  which  the  consignment 
is  made,  and  the  failure  to  employ  such  agent  is  not 
shown  to  be  unreasonable,  in  view  of  the  condition 
of  the  company's  business,  there  is  an  implied  con- 
sent that  the  carrier's  responsibility  shall  be  dissolved 
when  he  has  done  all  that  the  nature  of  the  case  per- 
mits him  to  do,  according  to  the  reasonable  and 
proper  usages  of  his  business." 

In  Penn.  R.  R.  Co.  vs.  Midvale  Steel  Co.,  51  Atl.  Rep., 
313,  the  comment  of  the  court  is  as  follows : 

"The  further  objection  to  plaintiff's  claim  is  that 
it  does  not  aver  expressly  or  impliedly  that  these  par- 
ties ever  became  parties  to  any  contract  for  the  pay- 
ment of  demurrage  on  detained  cars.  But  they  were 
parties  to  the  contract  of  shipment  over  the  plaintiff's 
road,  and  this  is  averred;  and  then,  further,  it  is 
averred  that  since  the  demurrage  rule  was  adopted 
it  has  formed  part  of  the  contract  of  shipment.  This 
is  sufficient  averment  of  the  implied  contract.  As  a 
consignee  of  goods  over  plaintiff's  railroad,  it  implied- 
ly contracted  to  submit  to  all  reasonable  rules  for  the 
regulation  of  shipments.  That  the  shipper  was  not 
consulted  in  framing  the  rules  does  not  affect  their 
validity.  Kentucky'  Wagon  Co.  vs.  Ohio  &  M.  Ry. 
Co.,  supra.  There  is  no  duty  on  a  common  carrier 
to  consult  either  its  shippers  or  consignees  as  to  the 
wisdom  of  its  rates  of  freight  for  carrying  or  rules 
for  demurrage.  **•-*'  It  was  not  bound  to  serve 
a  verbatim  copy  of  the  rule  on  defendant.  That  could 
have  shown  nothing  so  specifically  as  the  charge, 
which  plainly  says  what  detention  is  allowed,  what 
excess  is  charged,  on  what  car,  and.  on  what  goods." 


1 86 

And  that  defendant  had  full  knowledge  is  shown  by 
its  own  admission  that  bills  for  violation  of  the  rule 
were  regularly  rendered." 

In  the  case  now  before  this  court,  it  will  be  recollected 
that  appellant  had  been  familiar  with  the  car  service  rules 
of  the  appellee  for  more  than  a  year  prior. 

In  Miller  vs.  Mansfield,  112  Mass,  260,  the  court  said : 

'Tor  the  purposes  of  this  hearing  all  the  facts 
which  the  defendant  offered  to  show  are  to  be  taken 
as  established.  We  must  assume,  therefore,  that  there 
was  an  existing  regulation  and  usage  of  the  Housa- 
tonic  Railroad  Company  that  carloads  of  freight  like 
that  of  the  plaintiff's  should  be  unloaded  by  the  con- 
signee within  twenty-four  hours  after  notice  to  him  of 
their  arrival ;  that  for  delay  in  unloading,  after  twenty- 
four  hours,  the  consignee  should  pay  two  dollars  a 
day  for  each  car  belonging  to  other  railroad  compa- 
nies, and  that  this  regulation  and  usage  was  known  to 
the  plaintiff. 

"Being  known  to  the  plaintiff,  it  is  presumed,  in 
the  absence  of  any  evidence  to  the  contrary,  that  the 
parties  contracted  in  reference  to  it.  It  enters  into 
and  forms  a  part  of  their  contract,  and  the  railroad 
company  is  entitled  to  recover  the  amount  fixed  by 
the  usage,  by  virtue  of  the  plaintiff's  promise  to 
pay  it." 

In  M.,  D.  &  T.  Co.  vs.  Moore,  88  111.,  136,  it  appeared 
that  the  consignors  were  frequent  shippers  over  the  rail- 
road in  question ;  that  they  had  .accepted  certain  bills  of 
lading,  but  subsequently  objected  to  being  bound  by  the 
conditions  therein.  The  court  said: 

uWe  must  presume,  from  the  fact  that  the  con- 
signors were  frequent  shippers  by  this  line,  and  in 
the  habit  of  receiving  like  bills  of  lading,  that  they 
were  familiar  with  its  contents,  and  hence,  when  they 
accepted  it,  knew  that  it  obligated  the  defendant  only 
to  ship  to  the  Chicago  depot." 

In  C,  M.  &  St.  P.  vs.  Pioneer  Fuel  Company,  supra, 
the  court  said: 


i87 

"When  one  person  uses  the  property  of  another 
after  being  notified  that  a  charge  will  be  made  for 
the  same,  the  law  implies  a  contract  to  pay  a  rea- 
sonable sum  for  such  use.  This  is  an  elementary 
principle,  and  one  of  every  day  application  in  the 
courts.  The  fact  that  the  property  was  not  originally 
taken  for  that  use,  but  was  obtained  by  holding  the 
property  beyond  a  reasonable  time  after  obtaining  it 
for  another  purpose,  cannot,  either  upon  principle  or 
precedent,  make  any  difference.  *  *  *  It  is  the 
policy  of  the  law  to  require  a  reasonable  compensation 
for  every  valuable  thing  obtained  or  of  which  the  com- 
plaining party  has  been  deprived.  It  is  the  policy  of 
the  law  to  engraft  by  implication  all  those  provisions 
upon  every  contract  which  are  grounded,  in  the  good 
faith  of  each  party,  and  are  not,  therefore,  expressed 
in  the  contract." 

In  I.  C.  R.  R.  Co.  vs.  Alexander,  20  111.,  23,  it  is  said: 

'The  agent  of  the  plaintiffs  below  had  abundant 
notice  that  the  company  claimed  the  right  to  charge 
for  storage  after  the  goods  had  remained  in  the  depot 
one  day,  and  by  suffering  the  goods  to  remain  in  the 
warehouse  for  any  length  of  time,  when  by  such  rule 
they  would  be  subject  to  charge,  he  impliedly  agreed, 
for  his  principal  to  pay  reasonable  charges  for  the 
storage,  and  until  these  charges  were  paid,  the  com- 
pany were  not  bound  to  let  the  goods  go. 

"The  law  is  now  too  well  settled  to  bear  discussion 
that  a  railroad  company  may  assume  the  double  char- 
acter of  carriers  and  warehousemen.  That  their  duty 
as  carriers  is  ended  when  they  have  placed  the  goods 
in  a  safe  depot  of  their  own  or  any  other  safe  ware- 
house. That  their  depot  is  their  warehouse,  and  that 
for  warehouse  services  they  have  a  right  to  charge  a 
reasonable  compensation,  the  same  as  other  ware- 
housemen. The  railroad  company  in  this  case,  after 
their  relation  to  the  goods  as  common  carriers  had 
ceased,  is  then  to  be  considered  and  treated  the  same 
as  other  warehousemen  would  be  considered  and 
treated  in  case  the  goods  had  been  placed  in  another 
warehouse.  *  *  *  While  a  lien  for  these  charges 
existed,  which  the  agent  of  the  plaintiffs  neglected  or 


i88 

refused  to  pay,  the  company  was  not  guilty  of  a 
conversion,  by  retaining  the  goods  for  such  non-pay- 
ment. If  the  charges  claimed  for  the  storage  were 
unreasonable,  the  plaintiff  should  have  tendered  a  rea- 
sonable amount  for  the  charges,  and  then  if  the  com- 
pany had  refused  to  receive  it  and  deliver  the  goods,  it 
would  have  been  guilty  of  a  conversion." 

The  above  has  been  cited  time  and  time  again  with  ap- 
proval by  our  Supreme  Court. 

In  Darlington  vs.  Missouri  Pacific  Railway  Company, 
72  Southwestern,  122,  the  court,  speaking  of  what  are 
commonly  called  demurrage  or  car  service  rules,  says : 

"It  is  conceded  that  plaintiffs  had  knowledge  of 
the  existence  and  terms  of  this  rule,  and  that  they 
only  objected  to  the  payment  of  the  demurrage 
charges  on  account  of  the  weather,  and  it  appears 
from  the  evidence  of  Darlington  that  the  rule  had 
theretofore  been  recognized  and  acted  upon  by  the 
plaintiffs;  so  that,  leaving  out  of  consideration  the 
stipulations  in  the  bills  of  lading,  there  is  abundant 
evidence  that  plaintiffs  impliedly  agreed  to  be  bound 
by  these  car  service  rules.  But,  independent  of  any 
express  or  implied  contract  of  plaintiffs  to  be  bound 
by  the  rules,  the  modern  doctrine  in  this  country  is 
that  the  right  to  demurrage,  in  such  circumstances, 
exists  independent  of  contract  or  statute." 

In  the  case  of  M.,  L.  S.  &  W.  vs.  Lynch  (Wis.,  22,  L. 
R.  A.,  532),  a  car  of  lumber  had  been  allowed  to  stand  on 
the  side-track  until  one  dollar  car  service  had  accrued. 
Lynch  then  offered  to  pay  the  freight  and  unload  the  car, 
but  the  agent  refused  to  consent,  unless  the  one  dollar 
car  service  was  paid.  Nine  days  later,  the  car  was  un- 
loaded by  the  railroad  company,  and  Lynch,  over  the  pro- 
test of  the  agent,  took  the  lumber.  The  company  brought 
suit  against  him  for  the  charge.  The  court  and  jury  found 
that  the  car  had  been  properly  placed  for  unloading;  that 
the  rule  in  question  was  a  reasonable  one  as  to  the  time 
allowed  within  which  to  unload  and  as  to  amount  of  charge 
per  day.  Judgment  was  rendered  against  Lynch  for  $22 
and  costs. 


i89 

In  Goff  vs.  Old  Colony  Railroad,  6th  District  Court  of 
Rhode  Island,  22  L.  R.  A.,  532,  the  commodity  was  a 
carload  of  brick,  upon  which  car  service  charges  had  ac- 
crued, and  the  company  refused  to  deliver  the  car  until 
same  had  been  paid.  The  court  affirmed  the  railroad  com- 
pany's right  to  hold  the  freight  until  the  car  service  charges 
were  paid,  and  gave  judgment  for  the  railroad  company 
accordingly. 

In  Campbell  vs.  B.  &  O.  (Circuit  Court,  Jefferson 
County,  West  Virginia,  March,  1893),  the  consignees  were 
notified  of  the  arrival  of  two  cars  of  bark.  They  neglected 
to  call  and  pay  freight  charges  and  unload  same  until  after 
the  free  time  had  expired.  They  were  then  notified  by  the 
agent  of  the  additional  charge  of  one  dollar  car  service 
upon  each  car.  This  they  refused  to  pay,  and  the  company, 
in  accordance  with  its  rules,  declined  to  deliver  the  bark. 
Same  remained  in  the  cars,  until  charges  amounting  to 
$69  had  accrued  upon  each  car.  The  railroad  company 
then  sold  the  bark  for  the  freight  and  car  service  charges, 
and  Campbell  brought  suit  against  it  for  the  value  of  the 
bark.  The  case  was  tried  before  the  court.  The  court 
entered  judgment  in  favor  of  the  defendant  company  for 
$14.85,  the  difference  between  the  value  of  the  bark  sold 
and  the  total  amount  of  the  freight  and  car  service  charges. 

It  seems  to  appellee  that  careful  examination  will 
show  not  only  that  the  right  to  a  lien  is  necessary,  but 
that  it  is  reasonable  and  logical. 

First,  and  above  all,  it  is  right  and  just  that  the  rail- 
roads should  have  it.  They  are  compelled  to  furnish  to 
the  public  cars  for  the  transportation  of  commodities  (R. 
S.,  Ch.  114,  Sec.  84),  and  should  have  the  reciprocal  right 
to  compel  the  prompt  unloading  and  return  of  cars  to  the 
railroads  after  the  transportation  is  completed.  It  is  not 
sufficient  to  say  that  they  have  a  right  to  resort  to  an  in- 
finite number  of  suits  at  law  to  recover  any  reasonable 
charges  for  the  detention  of  the  cars  against  parties  who 
are  not  known  to  them  and  who  may  not  be  responsible. 
But  it  is  necessary  that  they  should  have  some  means  with- 
in their  own  control  to  enforce  the  prompt  unloading  of 
their  cars  after  a  reasonable  time  had  elapsed  for  the  un- 
loading of  the  same. 


190 

Second,  as  a  matter  of  law,  carriers  have  a  lien  for  all 
charges  connected  with  the  transportation  of  freight  from 
shippers  to  terminus ;  and, 

Third,  as  a  matter  of  law,  carriers  have  a  right  to  store 
freight,  which  is  not  called  for  within  a  reasonable  time, 
and  either  the  carrier  or  warehouseman  with  whom  the 
same  is  stored  have  a  lien  for  warehouse  charges. 

Fourth,  it  would  seem  that  as  a  matter  of  law,  from 
the  last  two  propositions,  that  if  a  carrier  can  store  freight 
and  hold  the  same  in  its  own  warehouse  until  the  charges 
of  a  warehouseman  are  paid,  then,  if  the  consignee  re- 
ceives his  freight  in  carload  lots,  and  in  such  shape  that 
it  is  not  practicable  for  the  carrier  to  unload  and  store 
same,  and  it  must  be  unloaded  by  the  consignee  from  the 
car,  and  the  consignee,  instead  of  unloading  same  within 
a  reasonable  time,  uses  the  car  for  his  own  convenience 
and  profit  as  a  storage  place,  it  should  follow  that  the 
carrier  should  have  the  same  lien  for  all  such  reasonable 
charges  for  the  use  of  the  car  as  it  would  have  had  if  the 
freight  had  been  of  such  character  that  it  could  and  should 
have  been  unloaded  and  placed  in  a  warehouse.  In  short, 
in  dealing  with  freight  which  is  being  shipped  in  carload 
lots  and  delivered  in  cars  upon  tracks,  the  character  of 
the  warehouse  is  simply  changed.  The  railroads,  not  be- 
ing able  to  unload  it  or  store  it  as  the  law  says  that  they 
may  do,  are  obliged  to  leave  it  in  their  cars  until  the  con- 
signee chooses  to  unload  it,  and  during  all  this  period 
of  detention  the  cars  are  the  actual  warehouse,  and  the 
same  reasoning  which  gives  a  lien  for  warehouse  charges 
when  freight  is  unloaded  and  stored  in  a  warehouse,  must 
necessarily  fix  a  lien  for  charges  for  the  use  of  the  cars, 
when  it  is  found  impossible  to  unload  or  store  the  freight. 

THE  CASES  CITED  BY  APPELLANT. 

The  appellant  relies  almost  entirely  upon  the  case  of 
Chicago  &  Northwestern  Railway  Company  vs.  Robert 
E.  Jenkins,  103  111.,  588,  in  support  of  his  position.  The 
facts  and  conditions  appearing  in  that  case,  taken  in  con- 
nection with  the  time  at  which  the  same  arose,  are  such 
that,  in  our  opinion,  the  same  is  not  applicable,  and  would 
not  now  be  held  by  this  court  to  be  decisive  of  the  ques- 
tion now  before  it. 


We  desire,  briefly,  in  commenting  upon  the  Jenkins 
case,  to  call  the  attention  of  the  court  to  the  following 
features,  which  are  so  different  that  we  believe  it  is  not 
decisive  of  this  case. 

In  the  Jenkins  case,  it  appears  that  a  quantity  of  paper 
had  been  consigned  to  Noyes  &  Messenger,  at  Chicago, 
from  some  person  at  Clinton,  Iowa.  This  paper  arrived 
at  the  depot  of  the  Northwestern  road  on  July  4,  1872. 
The  freight  was  paid  on  the  llth,  and  after  one  drayload 
of  paper  was  removed,  the  company  refused  to  deliver  the 
balance  until  the  consignee  should  pay  $5  per  day  for  each 
day  the  paper  had  remained  in  the  car  after  twenty-four 
hours  from  the  time  of  its  arrival.  The  court  will  notice 
the  following  distinctions : 

1.  The  load  in  that  case  was  paper,  a  commodity 
which  might  very  properly   have  been  unloaded  by  the 
railroad  company,  and  stored  in  its  warehouse.     In  fact, 
this   seems   to  have  been  one  of  the   controlling  points 
before  the  court  in  that  decision,  the  court  saying :    "Rail- 
road   companies    have    warehouses    in    which    to    store 
freights." 

Neither  does  it  appear  front  the  opinion  in  the  Jenkins 
case  whether  the  paper  in  question  constituted  the  entire 
Idad  of  the  car,  or  whether  it  was  merely  a  part  of  the 
merchandise  contained  in  the  car. 

In  the  case  at  bar  the  load  was  coke,  a  commodity 
which  could  not  be  stored  in  warehouses  with  advantage 
to  either  the  railroad  company  or  the  consignee.  In  this 
connection  it  ought  also  to  be  remembered  that  it  appears 
from  the  evidence  herein  that  the  coke  constituted  the 
entire  load  of  the  car,  and  that  it  is  the  universal  custom 
that  shipments  of  carload  lots  are  unloaded  by  the  con- 
signee. 

2.  In  the  Jenkins  case,  the  railroad  company  sought 
to   enforce   car   service   after   the   expiration   of  the   first 
twenty-four  hours  from  the  time  the  car  arrived.     Neither 
was  there,  in  that  case,  any  evidence  that  the  consignee 
knew  of  the  regulation  of  the  railroad  company  requir- 
ing the  unloading  of  cars  within  twenty-four  hours  after 
arrival;  nor  does  it  appear  that  the  consignee  had  knowl- 
edge as  to  when  the  car  arrived. 


192 

In  the  case  at  bar,  the  rules  of  the  appellee  company 
introduced  in  evidence  provided  that  the  cars  in  question 
should  be  unloaded  within  forty-eight  hours  from  the  first 
seven  o'clock  a.  m.,  after  the  car  was  placed  upon  the  track 
for  unloading.  Another  of  the  rules  provides  that  Sun- 
days shall  not  be  included.  As  a  matter  of  fact,  the  con- 
struction put  upon  these  rules  is  to  allow  forty-eight  hours 
from  the  seven  o'clock  a.  m.,  succeeding  the  day  on  which 
the  cars  are  placed  upon  the  track  for  unloading.  It  fur- 
ther appears  from  the  evidence  that  in  the  case  at  bar  ap- 
pellant knew  of  the  arrival  of  the  cars,  and  that  same  were 
ready  for  unloading  on  Friday,  June  20th,  the  day  preced- 
ing the  day  from  which  the  forty-eight  hours'  limit  would 
commence  to  run.  So  that,  instead  of  merely  the  forty- 
eight  hours  allowed  by  the  rules,  appellant  had  nearly 
seventy-two  hours  within  which  to  unload  before  any 
charge  for  detention  would  have  been  made. 

3.  In  the  Jenkins  case,  it  was  sought  to  enforce  a 
charge  of  $5  for  each  day  the  car  was  detained  in  unload- 
ing after  the  expiration  of  twenty-four  hours.     In  the  case 
at  bar  the  charge  made  was  but  one  dollar  per  day  after 
the  expiration  of  forty-eight  hours  provided  by  the  rules, 
but,   in    fact,   after   the   expiration   of  about   seventy-two 
hours,  Sunday  not  included.     It  appears  from  the  evidence 
in  this  case  that  $5  per  day  is  much  more  than  the  average 
daily  earning  capacity  of  a  car,  so  that  the  court  might 
well  have  considered  the  charge  of  $5  attempted  to  be  col- 
lected in  the  Jenkins  case,  as  in  the  nature  of  an  unlawful 
penalty.     On  the  other  hand,  it  appears  from  the  evidence 
in  this  case  that  the  average  daily  earning  capacity  of  a 
freight  car  of  appellee  was  $2.15,  and  that  the  average  daily 
earning  capacity  of  the  freight  cars   of  twenty-nine  rail- 
roads of  the  United  States  was  $2.42.    It  will  thus  be  seen 
that  the  charge  of  $1  per  day  in  the  case  at  bar  was  less 
than  fifty  per  cent,  of  the  amount  which  the  appellee  com- 
pany would  have  received  had  the  cars  been  promptly  un- 
loaded so  they  might  have  again  entered  its  service. 

4.  In  the  Jenkins  case,  the  court  said : 

"Railroad  companies  discharge  cargoes  carried  by 
them.  Carriers  by  ship  do  not,  but  it  is  done  by  the 
consignee." 


193 

It  is  evident  from  this  language  used  by  the  court  in 
that  case  that  the  court  did  not  have  in  mind  a  case  where 
the  load  was  a  carload  lot,  and  which  is  always  unloaded 
by  the  consignee,  but  did  have  in  mind  package  or  parcel 
freight  of  the  character  that  was  ordinarily  and  custom- 
arily unloaded  by  the  railroads  themselves  into  warehouses 
or  places  provided  by  them  for  that  purpose. 

In  the  case  at  bar  it  is  admitted  that  it  was  the  obliga- 
tion of  the  appellant  to  unload  the  cars  in  question.  It 
would  seem  that  a  railroad  car  loaded  with  a  commodity 
which  it  is  not  customary  for  the  railroad  company  to  un- 
load into  a  depot  or  warehouse,  but  which  is  always  un- 
loaded by  the  consignee/ is  rather  to  be  compared  to  the 
ship  mentioned  by  the  court  in  the  Jenkins  case,  than  to 
the  railroad  car  considered  in  that  case  as  loaded  with  or- 
dinary package  or  parcel  freight. 

In  the  Jenkins  case,  the  railroad  company  termed  the 
service  for  which  it  sought  to  make  the  charge  of  $5  per 
day  ''demurrage."  The  use  of  this  word  seems  to  have 
been  unfortunate,  as  the  court  evidently  considered  the 
word  in  the  technical  sense  in  which  it  is  used  in  the  mari- 
time law,  and  said  that  the  right  to  demurrage,  if  it  existed 
as  a  legal  right,  was  confined  to  "maritime  law,  and  only 
existed  as  to  carriers  by  sea-going  vessels,  and  further  said, 
that  such  right  was  believed  to  exist  alone  by  force  of  con- 
tract. 

The  charge  of  one  dollar  per  day,  made  in  the  case  at 
bar,  is,  as  appears  from  the  evidence,  made  primarily  for 
the  use  of  the  car,  and  the  track  upon  which  the  same 
stood,  and  incidentally  for  the  responsibility,  risk  and  ex- 
pense to  which  the  company  may  be  put  in  holding  the  car 
with  its  contents  upon  the  track,  occurring  during  the  un- 
necessary detention  of  same  by  reason  of  additional  neces- 
sary switching  of  the  same.  Whether  this  service  be 
termed  demurrage,  as  it  was  in  the  Jenkins  case,  or 
whether  it  be  called  a  car  service  charge,  as  is  more  com- 
mon, it  was,  nevertheless,  an  additional  service  performed 
by  the  railroad  company  over  and  above  the  matter  of 
transportation,  and  necessitated  wholly  by  the  default  or 
failure  of  the  appellant  to  receive  cargo  within  a  reasonable 
time. 


i94 

111  this  connection  we  wish  to  call  the  court's  attention 
to  the  fact  that  it.  is  believed  that  the  court  was  in  error 
when  in  the  Jenkins  case,  it  said,  that  the  right  to  demur- 
rage was  believed  to  exist  alone  by  force  of  contract.  While 
the  rule  in  English  courts  has  generally  been  that  demur- 
rage in  maritime  law  exists  only  by  express  contract,  yet 
the  courts  of  this  country  have  repeatedly  declined  to  fol- 
low the  rule  of  the  English  common  law  courts  on  this 
subject,  and  have  held,,  that  a  ship-owner  has  a  lien  upon 
the  cargo  for  demurrage,  notwithstanding  the  absence  of 
any  stipulation  of  contract  therefor  in  the  bill  of  lading. 

In  Hawgood  et.  al.  vs.  1,310  Tons  of  Coal,  21  Fed., 
G81,  the  court,  after  citing  at  length  many  cases,  concludes 
as  follows : 

"It  is  thus  apparent  that  there  is  no  ground  for  con- 
tention, at  least,  in  a  court  of  admiralty,  that  the  right 
to  maintain  a  claim  for  demurrage  or  damages  for  un- 
reasonable detention  of  a  vessel,  is  dependent  upon 
the  existence  of  a  demurrage  clause  in  the  bill  of  lad- 
ing. That  an  admiralty  action  in  personam,  will  lie 
in  such  a  case  against  the  consignee  of  the  cargo,  if  he 
is  responsible  for  such  detention,  is  also  beyond  ques- 
tion, whether  the  bill  of  lading  contains  any  stipula- 
tion on  the  subject  or  not.  Why  has  not  the  ship 
owner  also  a  lien  on  the  cargo  for  demurrage,  and 
why  could  not  such  a  lien  be  enforced  in  admiralty? 
*  *  *  Why  should  the  right  of  the  ship  owner  be 
limited  in  the  admiralty  to  the  common  law  lien,  when, 
in  fact,  that  right  is  dependent  on  the  law  merchant, 
which  extends  the  lien  or  privilege  to  all  damages  and 
expenses  growing  out  of  the  affreightment.  It  is  the 
doctrine  of  the  law  merchant  that  the  master  or  ship 
owner  contracts  rather  with  the  merchandise  than 
with  the  shipper;  and,  as  is  remarked  by  Judge  Shep- 
ley,  in  Donaldson  vs.  McDonald,  1  Holmes,  290 :  'It 
necessarily  follows  from  this,  that  the  merchandise  is 
liable  whenever  the  shipper  is  liable.'  In  the  present 
extended  jurisdiction  of  admiralty,  a  liberal  recogni- 
tion of  the  rights  of  the  parties  interested  in  lake  navi- 
gation or  commerce,  no  sound  reason  is  apparent  why 
the  ship  owner's  privilege  and  lien  should  not  be  ex- 
tended to  demurrage.  If  the  ship  is  bound  to  safely 
deliver  the  cargo  to  the  consignee  without  exemption 


195 

from  liability,  except  such  as  may  be  named  in  the 
bill  of  lading,  the  cargo  ought  to  be  answerable  for 
the  neglect  of  the  consignee  to  duly  receive  it.  The 
cargo  may  be  libeled  for  freight.  ^Why  not  for  the 
extended  freight  which  the  vessel  is  improperly  caused 
to  lose,  where,  as  in  this  case,  the  consignee  is  the 
owner  of  the  cargo?  *  *  *  The  course  of  argu- 
ment has  led  me  to  consider  the  question-  and  the  au- 
thorities at  some  length;  and  I  am  constrained  to  say, 
that  if  the  question  were  an  original  one,  I  should  have 
little  hesitation  in  coming  to  the  conclusion  an- 
nounced. The  libelants  received  from  the  consignee 
the  freight  money  due  them,  but  it  was  received  under 
protest  and  subject  to  the  demurrage  claim,  and  upon 
the  facts  shown,  I  am  of  the  opinion  that  the  demur- 
rage was  not  waived  or  lost  by  reason  of  anything 
that  transpired  in  relation  to  the  delivery  of  the  cargo, 
or  of  the  receipt  of  the  freight  moneys." 

In  the  case  of  the  M.  S.  Bacon  vs.  Erie  &  Western 
Transportation  Company,  3  Fed.  Rep.,  344,  it  was  held, 
that  an  express  stipulation  for  demurrage  in  a  contract  of 
affreightment  was  not  necessary  to  entitle  the  owner  of 
the  vessel  to  compensation  for  unnecessary  or  improper 
detention  in  loading  or  unloading. 

In  Transportation  Co.  vs.  P.  &  R.  Coal  &  Iron  Co., 
70  Fed.,  268,  and  in  the  same  case  in  the  Circuit  Court  of 
Appeals,  77  Fed.,  919,  it  was  held,  that  one  who  charters 
a  vessel  under  a  contract  that  is  silent  as  to  the  time  of 
unloading  and  discharge,  contracts,  by  implication,  that  he 
will  unload  and  discharge  her  within  a  reasonable  time,  and 
with  reasonable  diligence. 

It  may  not  be  irrelevant  to  call  attention  to  the  allu- 
sions of  some  of  the  courts  of  other  states  to  the  Jenkins 
case. 

In  Miller  vs.  Georgia  Railroad  Company,  88  Ga.,  563, 
the  court,  after  quoting  from  the  Jenkins  case,  says: 

"In  our  opinion  the  reasoning  in  that  case  is  incon- 
clusive. We  see  no  satisfactory  reason  why  carriers 
by  railroads  should  not  be  entitled  to  compensation 
for  the  unreasonable  delay  or  detention  of  their  ve- 
hicles, as  well  as  carriers  by  sea.  What  we  have  al- 
ready said,  we  think  is  a  sufficient  answer  to  the  rea- 
son assigned,  that  railroad  companies  have  ware- 


r96 

houses  in  which  to  store  their  freights;  and  the  rea- 
son that  'railroads  discharge  the  cargoes  carried  by 
them/  and  'carriers  by  ship  do  not;  but  it  is  done  by 
the  consignee,'  of  course,  cannot  operate  as  to  cases 
provided  for  by  this  rule,  which,  by  its  terms,  applies 
only  where  the  unloading  is  to  be  done  by  the  owner 
of  the  property.  Nor  is  it  settled,  that  the  right  to  de- 
murrage in  maritime  law  exists  only  by  express  con- 
tract. In  this  country  the  courts  have  repeatedly  de- 
clined to  follow  the  rulings  of  the  English  common 
law  courts  on  this  subject,  and  have  held,  that  the  ship 
owner  has  a  lien  on  the  cargo  for  demurrage,  notwith- 
standing the  absence  of  any  stipulation  therefor  in  the 
bill  of  lading.  But  we  are  not  controlled  by  the  au- 
thorities which  govern  as  to  demurrage  under  mari- 
time law.  The  adopting  by  the  railway  company  of 
the  term  'demurrage,'  as  a  designation  for  this  charge 
does  not  require  us  to  resort  to  that  law  as  a  standard 
for  testing  the  validity  of  the  rule.  We  are  to  look  to 
the  real  substance  and  effect  of  the  rule,  rather  than 
to  analogies  suggested  by  the  technical  designation 
which  the  carrier  in  this  instance  (Jenkins  case),  has 
seen  fit  to  adopt.  To  hold  that  because  the  conditions 
of  carnage  by  sea  are  different,  no  charge  under  this 
name  can  be  enforced  by  the  carrier  by  land,  or,  if 
allowed,  that  it  must  be  governed  by  the  rules  of  ma- 
rine law,  would  be  to  adopt  a  narrow  and  merely  tech- 
nical view,  ignoring  well-recognized  grounds  of  pub- 
lic policy,  and  the  right  of  the  carrier  to  prescribe  rea- 
sonable rules  and  regulations  for  its  own  safety  and 
the  benefit  of  the  public." 

In  C,  M.  &  St.  P.  Ry.  Co.  vs.  Pioneer  Fuel  Company, 
the  District  Court  of  Woodbury  County,  Iowa,  in  render- 
ing its  opinion,  commented  upon  the  Jenkins  case  as  fol- 
lows : 

"It  is  claimed  that  the  language  upon  page  599 
(103  111.)  of  the  opinion  holds  adverse  to  the  plain- 
tiff herein.  But  bearing  in  mind  the  facts  of  that 
case,  it  seems  clear  to  this  court  that  the  learned  judge 
had  in  mind  the  lien  which  was  involved,  and  not  the 
charges  which  the  lien  was  invoked  to  secure.  *  *  * 
The  action  being  in  trover,  the  legality  of  the  charge 
for  the  wrongful  detention  of  the  case,  was  not  and 


I97 

could  not,  under  the  view  of  the  court,  be  involved. 
And  we  ought  not,  by  a  forced  construction  of  the 
court's  language,  make  it  decide  a  case  which  was  not 
before  it,  and  which,  in  all  probability  it  had  not  con- 
sidered and  had  not  in  mind.  If  we  bear  in  mind  this, 
and  the  further  fact  that  the  charges  in  that  case  were 
five  dollars  a  day,  which  the  court  may  have  found  to 
be  exorbitant,  we  can  get  to  a  better  understanding 
of  the  language  of  the  court,  and  will  find  therein 
nothing  wholly  irreconcilable  with  the  right  of  the 
plaintiff  in  that  case  to  have  maintained  an  action  in 
ordinary  proceedings  for  the  reasonable  value  of  the 
use  of  the  cars  negligently  detained  beyond  a  reason- 
able time,  for  unloading  the  same." 

In  U.  P.  D.  &  G.  R.  R.  Co.  vs.  Cook,  50  A.  &  E.  R.  R. 
Case,  89,  the  District  Court  of  Arapahoe  County,  Colo- 
rado, the  court,  in  speaking  of  the  Jenkins'  case,  said : 

"The  decision  mentioned  in  Illinois  said  that  the 
question  of  demurrage  only  applied  to  the  maritime 
law.  I  do  not  think  that  it  is  any  reason  why  we 
should  hold  there  is  no  law,  because  there  is  no  statu- 
tory law  that  has  been  promulgated." 

In  the  case  of  Purcell  vs.  N.  Y.  C.  &  St.  L.  R.  R.  Co., 
in  the  Circuit  Court  of  Cook  County,  Judge  Horton  said  : 

"Were  it  not  for  the  case  of  the  Northwestern  Com- 
pany vs.  Jenkins,  103  111.,  588,  this  court  would  have 
no  serious  trouble  in  this  case.  That  case  at  first 
seems  to  be  conclusive  of  the  question  now  before  the 
court.  That  case  was  decided  upon  an  agreed  state- 
ment of  facts,  and  at  my  request  I  have  been  furnished 
with  and  have  examined  a  copy  of  this  agreement  as 
filed  in  the  Supreme  Court,  which  passed  upon  the 
case.  When  the  facts  in  that  case  are  examined  and 
compared  with  the  details  of  the  case  at  bar,  it  will  be 
seen  they  differ  materially.  For  instance,  in  a  sen- 
tence from  their  opinion  on  page  600,  the  Supreme 
Court  says :  'But  the  mode  of  doing  business  by  the 
two  kinds  of  carriers  is  essentially  different.'  That 
is,  carriers  by  sea  and  carriers  by  rail.  'Railroad 
companies  have  warehouses  in  which  to  store  freights. 
Owners  of  vessels  have  none.  Railroads  discharge 


198 

cargoes  carried  by  them.  Carriers  by  ship  do  not,  but 
it  is  done  by  the  consignee.  The  masters  of  vessels 
provide  in  the  contract  for  demurrage,  while  railroads 
do  not.  And  it  is  seen  these  essential  differences  are, 
under  the  rules  of  the  maritime  law,  wholly  inap- 
plicable to  railroad  carriers/  It  appears  in  the  evi- 
dence, and  perhaps  the  court  should  take  judicial  cog- 
nizance of  the  fact,  that  the  railway  company  has  no 
warehouse  for  the  storage  of  coal  shipped  in  bulk. 
Another  difference  in  the  facts  is  that  the  railroad 
company  is  required  by  law  to  deliver  this  coal  into 
the  complainant's  yard.  Again,  it  is  the  duty  of  the 
consignee  to  unload  this  coal,  the  same  as  it  is  the 
duty  of  the  consignee  to  unload  a  vessel.  There  is  no 
demurrage,  as  such,  in  the  technical  sense  of  demur- 
rage, claimed  in  this  case.  There  was  no  bill  of  lad- 
ing accompanying  the  coal,  but  it  was  the  custom,  as 
between  this  railway  company  and  this  consignee  and 
the  consignor,  to  ship  the  coal  without  bills  of  lading. 
I  do  not  know  what  the  railway's  custom  is,  but  they 
have  some  sort  of  checks  or  bills  for  the  use  of  their 
conductors  and  they  are  delivered  with  the  goods. 
As  remarked  by  the  Supreme  Court  in  the  Jenkins 
case  there  can  be  no  such  lien  except  by  contract,  or 
where  it  is  allowed  by  law.  There  are  many  classes  of 
cases  where  a  lien  is  allowed,  and  where,  without  any 
specific  contract  to  that  effect,  the  law  sustains  it, 
such  as  innkeepers,  agisters,  carriers,  bailees  and  ware- 
housemen. Demurrage,  as  such,  technically,  cannot 
be  sustained ;  but  the  right  of  lien  is  not  limited  here, 
technically,  to  the  word  demurrage,  or  to  what  may 
be  defined  demurrage.  When  the  railway  company 
placed  the  cars  in  the  yard,  the  relation  of  carrier 
ceased.  When  the  cars  were  shunted  onto  the  side- 
track in  the  yards  of  the  plaintiff,  then  the  relation  of 
carrier  ceased ;  but  was  not  the  railway  company  fur- 
nishing storage  for  this  party?  Substantially  the  same 
relation  exists  when  cars  were  set  upon  a  side-track, 
ready  to  be  delivered,  and  plaintiff  did  not  receive 
them.  It  seems  to  me  that  the  company,  under  such 
circumstances,  would  be  sustained  in  so  leaving  the 
coal  in  cars,  and  considering  the  class  of  freight,  it  is 
a  proper  place  to  store  it.  It  would  not  be  a  proper 
place  to  store  paper,  such  as  was  the  subject-matter  of 


199 

the  Jenkins  case,  but  it  would  be  for  bulk  coal 
Whether  it  be  called  demurrage  or  car  service,  or 
whatever  it  may  be,  it  seems  that  the  company  is  en- 
titled to  a  lien  for  a  proper  charge.  If  they  make  an 
unreasonable  charge,  the  plaintiff  can  make  tender, 
replevin  or  pay  under  protest.  If  the  company  is  to 
look  to  the  parties  in  a  civil  suit  for  the  money,  they 
have  to  sue  as  many  parties  as  were  owners  of  the 
coal  while  it  remained  on  the  cars.  I  do  not  think 
that  is  a  reasonable  rule  to  establish." 

In  Fuller  et.  al.  vs.  C,  C,  C.  &  St.  Louis  R.  R.  Co., 
Circuit  Court  of  Coles  County,  Illinois,  April  term,  1890, 
Judge  Wright,  who  rendered  the  opinion  of  the  court,  said  : 

''Were  it  not  for  the  decision  of  the  Supreme  Court 
of  this  state  in  the  Jenkins  case,  reported  in  103  111. 
reports,  the  court  would  have  little  difficulty  in  reach- 
ing a  conclusion. 

However,  the  court  has  arrived  at  a  conclusion 
which  at  least  is  satisfactory  to  itself.  The  common 
law  rule  in  respect  to  liens  is  a  familiar  one,  and  of 
wide  and  varied  application. 

It  is  a  familiar  principle  of  the  common  law  that 
one  who  has  bestowed  any  particular  service  or  care 
upon  any  article  of  property  which  has  been  confided 
to  his  possession  for  such  purpose,  has  a  lien  upon 
it  for  any  reasonable  charge  in  respect  to  such  ser- 
vice or  care.  It  is  difficult  to  see  why  the  facts  in  the 
present  case  do  not  call  for  the  application  of  this 
familiar  principle.  It  is  difficult  to  imagine  why  a 
railroad  company,  having  bestowed  a  care  upon  prop- 
erty for  which  it  is  conceded  to  be  entitled  to  a  rea- 
sonable charge  in  that  respect,  should  be  exempted 
from  the  general  rule  which  entitles  parties  perform- 
ing such  service  to  a  lien  upon  the  property. 

All,  in  my  judgment,  that  the  Jenkins  case  deter- 
mines is  that  the  consignee  is  not  bound  by  the  rules 
of  the  company  unless  he  consents  or  agrees  thereto. 
This  principle  is  generally  true,  not  only  in  cases  like 
the  present,  but  in  all  other  cases.  It  is  not  denied 
that  the  shipper  is  entitled  to  a  reasonable  time  to  un- 
load the  cars  before  he  is  subjected  to  any  charges. 


200 

The  statute  in  respect  to  grain  provides  that  twenty- 
four  hours  is  a  reasonable  time.  In  the  case  at  bar, 
the  rule  gives  forty-eight  hours.  It  is  difficult  to  see 
why  twenty-four  hours  in  the  one  case  should  be  a 
reasonable  time,  and  forty-eight  hours  in  the  other 
case  should  be  unreasonable.  Therefore,  it  can  hardly 
be  contended  that  forty-eight  hours  is  an  unreason- 
able time  under  the  facts  and  circumstances  of  the 
case,  in  view  of  the  express  legislative  provision  in  re- 
spect to  freight  which  consists  of  grain. 

The  legislature  has  seen  fit  to  pass  another  statute 
in  this  state,  which,  while  it  is  not  upon  the  express 
subject  involved  in  this  case,  seems  to'  me  to  have  a 
very  pertinent  application,  and  to  a  certain  extent  will 
control  the  decision  of  this  case.  It  is  the  statute  re- 
lating to  unclaimed  property,  Chapter  141,  Revised 
Statutes.  The  title  of  that  act  is  'An  act  to  provide 
for  the  sale  of  personal  property  by  carriers,  ware- 
housemen, innkeepers,  and  by  others  having  liens 
thereon.'  Now,  it  seems  to  me  this  statute  plainly  rec- 
ognizes that  railroad  companies  have  a  lien  upon  all 
personal  property  transported  by  them,  not  only  for 
freight,  though  that  is  not  the  word  used  by  this  stat- 
ute, but  for  the  reasonable  charges  thereon.  It  is 
conceded  in  this  case  that  the  railroad  company  has 
the  right  to  charge  for  car  service  after  a  reasonable 
delay  on  the  part  of  the  consignee  in  unloading  the 
freight.  If  that  be  true,  then  it  becomes  a  legal  charge 
to  the  same  extent  that  the  freight  rate  is  a  legal 
charge,  and  this  statute,  by  its  title,  and  by  its  plain 
provisions,  recognizes  that  lien  and  subjects  the  prop- 
erty, under  certain  conditions,  and  after  the  lapse  of 
a  certain  time  to  be  sold  to  pay  these  legal  charges. 
This  view  of  the  case  seems  to  be  more  consistent  with 
justice  between  man  and  man  than  the  other  view  of 
the  case  contended  for,  which  is  that  the  railroad  com- 
pany should  sue  the  party  for  those  charges. 

To  recognize  a  lien  existing  in  favor  of  the  common 
carrier  is  promotive  of  justice.  It  avoids  litigation 
and  enables  the  parties  to  settle  these  small  charges 
without  controversy.  The  principal  object  of  the  rule 
of  the  company  doubtless  is  not  to  secure  the  small 
charges  made  for  the  use  of  cars,  but  to  secure  to 
themselves  and  to  the  public,  the  use  of  the  cars. 


201 

If  the  courts  refuse  to  recognize  liens  under  these 
circumstances  shown  in  the  evidence  here,  it  would 
not  only  be  a  detriment  to  the  railroad  company,  but 
it  would  be  destructive  to  the  public's  interest  in  view 
of  the  fact  that  it  is  necessary,  both  for  the  railroad 
company  and  the  public,  that  the  railroad  company 
should  at  all  times  have  the  use  of  their  cars  in  order 
that  the  public  business  may  be  properly  transacted. " 

Many  more  cases  might  be  cited  from  the  decisions  of 
other  states  wherein  the  position  set  forth  in  the  Jenkins 
case  is  not  sustained.  But  for  the  purpose  of  this  hear- 
ing it  is  in  our  opinion  wholly  unnecessary  to  question  the 
wisdom  of  this  court  in  that  case.  The  court  places  its  de- 
cision in  that  case  upon  the  broad  ground  that  a  railroad 
company,  having  a  right  to  unload  cars  and  store  the 
freight,  could  not  charge  for  the  use  of  cars  which  it  might, 
by  the  exercise  of  diligence,  have  unloaded.  But  it  is  not 
believed  that  this  court  will  ever  hold  that  a  railroad  com- 
pany should  unload  freight  in  bulk,  such  as  coke,  coal, 
grain,  wood  or  the  like,  and  store  the  same  either  upon  the 
ground  or  in  warehouses.  It  is  so  obviously  impracticable, 
not  to  say  impossible,  that  the  necessity  for  permitting  the 
freight  to  remain  in  the  cars  until  the  consignee  sees  fit  to 
unload  it,  or  until  it  can  be  disposed  of  in  car  load  lots,  is 
at  once  apparent.  A  radical  distinction  exists  between  the 
delivery  to  consignee  of  freight  in  bulk  in  car  load  lots,  and 
the  miscellaneous  parcel  and  package  freight  which  can 
easily  and  with  little  expense  be  transferred  to  a  ware- 
house. This  distinction  is  recognized  in  the  case  of  Coe 
vs.  L.  &  N.  R.  R.,  3  Fed.,  775,  wherein  the  court  says : 

"The  common  law  must  be  applied,  as  the  necessity 
of  its  relaxation  did  not  exist.  This  rule  (rule  regard- 
ing the  delivery  of  grain  to  a  warehouse  on  the  line 
of  the  road)  is  just  and  convenient,  and  necessary  to 
an  expeditious  and  economical  delivery  of  freight.  It 
has  regard  to  their  proper  classification,  and  to  the 
circumstances  of  the  particular  case.  Under  it  ar- 
ticles susceptible  of  easy  transfer  may  be  delivered  at 
a  general  delivery  depot  provided  for  the  purpose. 
But  live  stock,  coal,  ore,  grain  in  bulk,  marble,  etc., 
do  not  belong  to  this  class.  For  these  some  other  and 
more  appropriate  mode  of  delivery  must  be  provided." 


202 


As  above  stated,  the  Jenkins  case  was  tried  upon  an 
agreed  state  of  facts.  The  sixth  clause  of  the  agreed  state- 
ment was  as  follows : 

"At  the  time  this  paper  was  received  by  the  defend- 
ant into  its  cars  at  Clinton,  and  when  cars  were  re- 
ceived or  arrived  at  the  railway  station  in  Chicago,  the 
defendant  had  standing  on  its  grounds,  and  along  its 
tracks,  freight  houses  into  which  it  did,  and  was  accus- 
tomed to  put  freight  brought  in  by  it  or  on  its  cars  to 
Chicago,  as  well  as  to  allow  it  to  remain  in  the  cars 
unloaded." 

An  inspection  of  this  clause  is  sufficient  to  show  that 
the  Railway  Company  in  that  case  practically  admitted 
away  the  foundation  of  its  claim  for  demurrage  in  saying 
that  it  had  freight  houses,  into  which  it  did,  and  was  ac- 
customed to  put  freight  brought  to  Chicago.  Such  being 
the  case,  it  was  not  in  a  position  to  charge  a  high  price 
for  the  use  of  cars  on  its  track,  which  might  be  very  valu- 
able, when  it  at  the  same  time  had  the  facilities  for  unload- 
ing the  freight  into  a  warehouse,  and  when  it  was  equally 
customary  to  so  unload  into  such  warehouses.  In  the  case 
now  at  bar,  the  company  had  no  warehouses  within  which 
to  store  coke,  nor  was  there  any  claim  that  it  was  the  cus- 
tom to  store  coke  in  warehouses,  or  that  the  appellant  ex- 
pected it  to  be  stored  in  a  warehouse,  and  if  stored  the 
coke  would  have  been  depreciated  in  value  by  the  addi- 
tional handling. 

We  are  confident  that  had  the  question  of  car  service 
been  properly  presented  to  this  court  in  the  light  of  the 
facts  in  the  present  case,  it  would  have  arrived  at  a  very 
different  conclusion  as  to  the  right  of  a  railway  company 
or  a  ship  owner  to  collect  damages  in  the  nature  of  demur- 
rage for  an  unreasonable  detention,  regardless  of  contract. 

The  appellant,  in  addition  to  the  Jenkins  case,  has 
cited  the  two  cases  reported  in  the  73d  Illinois  Appellate, 
namely,  C,  C,  C.  &  St.  L.  vs.  Holden,  73  111.  App.,  582,  and 
C,  C,  C.  &  St.  L.  vs.  Lamm,  73  111.  App.,  592.  The  opin- 
ions in  each  of  these  cases  were  by  Justice  Harker. 

In  the  Lamm  case  it  appears  from  the  opinion  of  the 
court  that  the  condition  of  the  railroad  yard  for  some 
thirty  or  fortv  feet  between  the  car  and  the  macadamized 


203 

road  over  which  the  teamster  had  to  drive,  was  very  bad 
because  of  the  mud.  The  court  found  as  a  matter  o"f  fact 
that  there  was  no  unnecessary  delay  on  the  part  of  the  de- 
fendant in  removing  the  lumber  in  question,  and  says : 

'The  delay  seems  to  have  been  caused  by  the 
muddy  condition  of  the  railroad  yard  in  which  the 
car  was  standing,  in  which  not  more  than  half  a  wagon 
load  could  be  hauled  at  one  time." 

Furthermore,  the  court  said : 

''Neither  the  amount  of  the  judgment  ($35),  nor  the 
questions  of  law  involved  in  the  controversy,  will  justi- 
fy a  discussion  in  detail  of  the  numerous  points  of  con- 
tention raised  by  the  appellant.  We  feel  that  the  law 
of  the  case  was  settled  in  the  case  of  C.  &  N.  W.  Ry. 
Co.  vs.  Jenkins,  103  111.,  588." 

The  fact  that  the  court  found  that  tftere  was  no  un- 
necessary delay  in  unloading  the  car,  due  to  the  fault  of 
the  railroad  company  in  failing  to  have  its  railroad  yard 
in  a  suitable  condition  for  the  hauling  of  full  loads,  probably 
influenced  the  court  in  its  decision  of  this  case  more  than 
the  law  or  argument  of  counsel.  Had  there  been  no  dis- 
pute in  the  facts,  we  are  inclined  to  the  opinion  that  the 
decision  of  the  court  would  have  been  different,  and  in- 
stead of  announcing  the  proposition  that  a  railroad  com- 
pany has  no  lien  or  right  of  retaining  for  car  service 
charges  the  goods  consigned,  it  would  have  held  that  while 
in  their  warehouse,  or,  in  the  case  of  car  load  lots,  in  their 
cars,  it  would  have  a  lien  upon  the  property  for  the  pay- 
ment of  a  fair  and  reasonable  and  just  charge  for  the  stor- 
age made  necessary  by  failure  of  consignee  to  unload  with- 
in reasonable  time. 

The  same  questions  of  fact  were  evidently  leading  fea- 
tures in  the  decision  of  the  Holden  case,  wherein  judge 
Harker  says  that  he  is  guided  in  his  decision  by  the  hold- 
ing of  the  Supreme  Court  in  the  Jenkins  case,  to  the  effect 
that  the  right  of  demurrage  does  not  attach  to  carriers  by 
rail,  and  that  liens  are  only  created  by  law  or  by  contract 
of  the  parties. 

We  believe  that  we  have  shown  to  the  satisfaction  of 
this  court  that  the  statement  of  this  court  in  the  Jenkins 
case  to  the  effect  that  the  right  of  demurrage  only  existed 


204 

by  virtue  of  express  contract,  was  wrong,  and  that  in  this 
country  the  right  to  demurrage  is  recognized,  although  the 
contract  of  carriage  may  be  entirely  silent  in  that  respect. 

The  only  other  cases  relied  upon  by  appellant,  are 
those  of  E.  T.  V.  &  G.  R.  R.  Co.  v.  Hunt,  83  Term.,  and 
Crommelin  v.  N.  Y.  &  H.  R.  R.  Co.,  10  Bosworth,  77. 

In  the  Hunt  case  it  appeared  that  a  car  load  of  stoves 
had  been  consigned  to  the  defendant,  and  that  after  the 
car  arrived  at  destination  "it  was  three  or  four  days  be- 
fore the  car  was  placed  at  the  point  for  unloading,"  and 
when  this  was  done  and  the  consignee  sent  hands  to  un- 
load, the  agent  refused  to  unlock  the  car,  because  the  freight 
had  not  been  paid.  The  consignee  offered  to  pay  the  freight 
once  or  twice,  but  the  company  would  not  place  the  car 
in  position  to  be  discharged  of  the  goods,  because  the  com- 
pany claimed  damage  of  $2  or  $2.50  per  day  on  the  cars, 
of  which  payment  was  refused. 

The  court  further  says: 

"Under  any  state  of  facts  in  the  absence  of  an 
agreement  to  the  contrary,  the  company  was  not  en- 
titled to  demand  or  recover  either  freight  charges  or 
demurrage  until  it  was  in  a  position  to  tender  delivery 
of  the  goods  at  a  safe,  convenient  and  uninterrupted 
point  at  its  depot  or  on  its  road.  The  legal  effect  of 
this  undertaking  was  to  deliver  the  goods  at  a  point 
and  in  a  manner  to  enable  the  consignee  to  receive 
them  without  inconvenience,  delay  or  interruption.  If 
it  requires  the  consignee  to  remove  the  goods  in  a 
limited  time,  it  must  do  all  in  its  power  to  enable  him 
to  do  so,  while  it  may,  after  giving  notice  of  the  re- 
ceipt of  the  goods,  require  prompt  action  on  the  part 
of  the  consignee,  he  may  demand  of  it  free,  conven- 
ient, safe  and  undisturbed  access  to  his  goods." 

From  the  above  it  is  evident  that  there  was  no  merit 
in  the  charge  of  $2  or  $2.50  per  day  sought  to  be  made 
in  that  case.  The  court  does,  however,  recognize  the  right 
of  the  company  after  giving  notice  of  the  arrival  of  the 
goods  to  the  consignee  to  require  prompt  action  on  the 
part  of  the  consignee  in  unloading  the  same,  but  insists  that 


.      205 

such  prompt  action  cannot  be  demanded  by  the  company 
unless  it  has  placed  the  car  where  it  can  be  safely  and  con- 
veniently unloaded,  without  interruption. 

The  court  having  found  as  a  matter  of  fact  that  the 
railroad  company  was  not  entitled  to  the  charge,  did  not 
apparently  make  any  considerable  investigation  as  to  the 
right  of  the  company  to  secure  the  charge  in  question  by  a 
lien,  but  relied  upon  the  decision  of  Somes  v.  The  British 
Empire  Shipping  Company,  which  case,  in  accordance  with 
the  older  English  authorities,  held  that  demurrage  was 
strictly  a  matter  of  contract. 

In  the  Crommelin  case  it  appeared  that  three  cars 
loaded  with  marble  were  transported  by  the  railroad  com- 
pany to  the  point  of  destination,  and  that  the  same  remained 
in  the  street  in  front  of  the  depot  for  several  days.  A 
charge  of  one  dollar  per  car  per  day  was  sought  to  be  im- 
posed by  the  railroad  company,  and  the  company  refused 
to  deliver  the  marble  without  the  payment  of  this.  The 
court,  in  rendering  its  opinion,  laid  considerable  stress  upon 
the  fact  that  the  cars  were  allowed  to  remain  on  a  public 
street,  and  as  a  matter  of  fact  created  a  public  nuisance. 
Furthermore,  considering  the  character  of  the  load  of  the 
cars,  the  court  said: 

f'So  far  as  any  safety  of  the  merchandise  was  con- 
cerned, its  bulk  would  probably  have  rendered  it  equal- 
ly safe  if  taken  off  from  the  cars  and  laid  on  the  pave- 
ment. Leaving  article?  in  an  open  vehicle  exposed 
on  a  highway  is  not  the  kind  of  storage  for  which  a 
lien  can  be  acquired." 

In  a  dissenting  opinion  by  Judge  Monell,  rendered  in 
this  same  case,  it  was  held  that  inasmuch  as  the  consignee 
had  notice  of  the  regulation  when  he  shipped  the  marble, 
that  there  was  an  implied  agreement  upon  which  the  rail- 
road company  could  recover -in  an  action  for  that  purpose. 
The  dissenting  opinion  does,  however,  say  that  the  right 
of  lien,  if  any  existed  in  favor  of  the  railroad  company, 
must  be  established  either  by  express  contract  or  by  the 
common  law,  and  cites  the  cases  of  Burley  v.  Gladstone, 
3  M.  S.  R.,  205,  and  Lambert  v.  Robinson,  1  Esp.  R.,  110. 
(See  comment  on  first  of  these  cases  in  the  Hawgood  case, 
21st  Fed.,  681.) 


206      . 

As  above  stated,  the  holding  of  the  admiralty  courts  in 
this  country,  as  set  forth  in  the  cases  of  Hawgood  v.  1,310 
tons  coal,  21  Fed.,  681,  and  Young  v.  140,000  brick,  78 
Fed.,  149,  is  not  in  harmony  with  the  holdings  of  the  Eng- 
lish courts,  in  that  they  say  that  in  maritime  law  the  right 
of  demurrage  exists  aside  from  agreement  by  express  con- 
tract. 

In  the  Crommelin  case  it  was  held  that  the  defendants 
could  not  be  regarded  as  warehousekeepers  and  as  such 
entitled  to  lien  for  storage,  the  court  saying: 

"They  did  not  in  any  sense  store  the  plaintiff's  mar- 
ble. It  was  left  upon  the  cars  standing  upon  the  rail- 
way track  in  the  public  highway.  Upon  its  arrival 
at  the  place  of  destination  and  notice  to  the  plaintiff, 
and  a  reasonable  time  given  to  accept  and  take  by  the 
consignee,  the  defendant  had  discharged  their  whole 
duty  and  could  not  be  responsible  for  any  loss  or  dam- 
age; and  hence  no  right  of  lien  could  arise  for  hous- 
ing, unless  defendants  were  warehousemen  as  well  as 
carriers,  which  they  were  not  in  this  case." 

The  Crommelin  case  was  decided  in  November,  1862. 
At  that  date  railroading  was  comparatively  in  its  infancy, 
and  the  shipping  of  commodities  in  bulk  and  car  load  lots 
to  be  loaded  and  unloaded  by  the  consignor  and  consignee 
was  comparatively  unknown.  Nor  do  we  think  that  the 
law  was  correctly  stated  in  that  case,  when  it  was  said  that 
after  a  reasonable  time  had  elapsed  within  which  the  con- 
signee might  accept  the  goods,  that  the  defendants  had 
discharged  their  whole  duty  and  could  not  be  held  respon- 
sible for  any  loss  or  damage.  We  do  not  understand  that 
a  common  carrier  can  abandon,  as  a  matter  of  indifference, 
property  transported  by  it,  after  it  has  afforded  a  reasonable 
opportunity  to  the  consignee  to  call  for  or  unload  the  same, 
but  that  after  such  time  has  elapsed  the  carrier  must  assume 
the  obligation  of  a  warehouseman. 

In  Gregg  v.  Illinois  Central  R.  R.  Co.,  147  111.,  our 
Supreme  Court,  speaking  upon  this  point,  said: 

"The  railroad  company  was  not  required  to  keep 
corn  in  its  cars  on  track  indefinitely,  and  although  the 
consignee  was  in  default  in  not  receiving  the  freight 


207 

after  a  reasonable  time  and  opportunity  had  been  af- 
forded in  which  to  take  it,  the  carrier  could  not  aban- 
don it,  but  was  required  to  exercise  ordinary  and  reas- 
onable care  for  its  preservation  as  a  warehouseman. 
In  the  exercise  of  such  care  it  might  leave  it  in  the 
cars,  store  it  in  its  own  warehouse,  assuming  the  lia- 
bility of  bailee  or  warehouseman  therefor,  or  it  might 
with  the  exercise  of  a  like  degree  of  care  in  selecting 
a  responsible  and  safe  depository,  store  the  grain  in 
an  elevator  or  warehouse  at  the  expense  and  risk  of 
the  consignee  and  thereby  discharge  itself  from  further 
liability." 

CONCLUSION. 

In  conclusion,  we  respectfully  submit  that  the  proposi- 
tions contended  for  by  appellee  in  the  opening  of  this  brief, 
are  sustained  by  the  authorities,  namely: 

First.  That  after  a  reasonable  time  had  been  afforded 
appellant  to  unload  the  cars  of  coke  in  question,  that  this 
appellee  had  a  right  to  make  a  reasonable  charge,  known 
as  a  car  service  charge,  for  the  further  detention  and  use 
of  the  cars  and  track. 

Second.  That  the  appellee  was  entitled  to  a  lien  upon 
the  contents  of  said  cars  to  secure  such  charge. 

It  will  be  seen  by  an  examination  of  the  authorities 
cited,  that  the  courts  of  many  states,  notably  those  of 
Massachusetts,  Virginia,  Kentucky,Wisconsin,  Iowa,  Rhode 
Island,  Colorado,  Georgia,  Missouri  and  Pennsylvania, 
have  passed  upon  this  question,  and  that  every  one  of  them 
have  upheld  the  right  of  a  railroad  company,  in  proper 
cases,  to  make  a  car  service  charge,  and  to  collect  same  by 
retaining  a  lien  upon  the  contents,  or  such  portion  of  the 
same  as  may  remain  in  the  cars.  In  some  cases,  the  charge 
in  question  is  called  "a  car  service  charge";  in  others,  a 
"demurrage  charge,''  and  in  still  others,  a  "charge  in  the 
nature  of  demurrage";  but  it  is  obvious  that  a  storage  or 
warehouse  charge  is  what  is  meant  in  each  case. 

The  law  requires  railroad  companies  to  transport  the 
commodities  offered  them  for  transportation.  Such  com- 
modities must,  therefore,  be  transported  by  them.  When 


208 

delivered  at  their  destination  what  shall*  be  done  with 
them?  It  would  be  a  physical  impossibility  for  railroads 
to  provide  warehouses  in  which  these  commodities  could 
be  stored  if  not  unloaded  within  a  reasonable  time  after 
they  have  arrived  at  their  destination.  And  if  the  shipper 
could,  by  any  possibility,  indicate  to  the  railroad  company 
the  character  or  kind  of  a  house  in  which  he  desired  his 
goods  should  be  stored,  the  impossibility  of  providing  stor- 
age room  would  be  still  greater.  One  might  want  a  steel 
structure,  another  one  an  iron  building,  another  a  brick 
building,  and  it  would  be  necessary  for  the  railroad  com- 
pany to  have  all  kinds  and  character  of  buildings  in  order 
to  suit  the  varying  tastes  and  dispositions  of  the  different 
consignors  and  consignees.  If  railroads  can  store  goods 
which  are  shipped  over  their  road  in  a  warehouse  or  depot 
and  relieve  themselves  of  their  liability  as  common  carriers, 
what  reason  is  there  why  they  cannot  relieve  themselves  of 
their  liability  by  continuing  to  use  the  car  in  which  they 
were  shipped,  for  a  warehouse.  Counsel  for  appellant,  in 
his  brief,  concedes,  for  the  sake  of  argument,  that  the  com- 
pany has  the  right  to  charge  for  the  use  of  the  car.  If  this 
is  so  there  must  be  some  reason  for.it.  How  is  it  that  it 
can  charge  for  the  use  of  the  car?  Certainly  not  for  carry- 
ing the  goods,  for  the  transportation  is  over,  and  its  duty 
as  a  common  carrier  has  been  performed  when  it  has  deliv- 
ered the  car  at  point  of  destination,  and  waited  a  reason- 
able time  for  the  consignee  to  unload  it.  It  then,  as  a 
common  carrier,  has  only  a  lien  for  carriage  charges.  What, 
therefore,  is  it  that  enables  it  to  charge  for  the  use  of  the 
car.  In  our  judgment,  there  is  only  one  ground  upon 
which  it  can  do  this,  and  that  is  that  it  is  acting  as  a  ware- 
houseman, and  as  such,  is  entitled  to  compensation;  and, 
if  it  is  a  warehouseman,  it  never  loses  possession  of  the 
goods,  for  although  the  consignee  is  permitted  to  unload 
a  part  of  same  from  the  car  in  which  they  have  been  trans- 
ported, yet,  as  to  the  goods  which  are  not  removed,  they 
are  still  in  the  possession  of  the  railroad  company  as  a 
warehouseman,  and  as  such,  it  has  a  lien  upon  them  for 
payment  of  any  amount  which  may  be  due  for  storage 
charges.  If  railroad  companies  in  proper  cases  are  not 
allowed  to  enforce  their  lien  as  warehousemen,  the  railroad 
sidings  all  over  this  country  will  be  crowded  with  cars 
that  are  partially  unloaded,  and  the  railroads  will  be  unable 


209 

to  provide  vehicles  enough  to  transport  even  a  small  per- 
centage of  the  vast  amount  of  freight  which  they  are  today 
carrying. 

We  have  felt  justified  in  the  argument  of  this  case  in 
asking  the  court  to  examine  carefully  and  at  length  the 
several  points  presented  by  the  appellee;  not  that  the 
amount  of  the  judgment  involved  in  this  particular  con- 
troversy will  justify  same,  but  because  a  decision  of  the 
questions  involved  herein  will  be  far-reaching  in  its  effect 
upon  the  commerce  of  the  country. 

It  is  respectfully  submitted  that  the  judgment  of  the 
Appellate  Court  herein  should  be  affirmed. 

PAM,  CALHOUN  &  GLENNON,  and 
A.  W.  PULVER  and  S.  A.  LYNDE, 

Attorneys  for  Appellee. 
CHARLES  D.  CLARK, 
Of  Counsel. 


REPLY  BRIEF  OF  APPELLANT. 

May  It  Please  the  Court: 

The  lien  claimed  by  appellee  railroad  company  did  not 
exist  at  common  law.  The  lien  does  not  exist  in  this  state 
by  statute.  The  lien  does  not  exist  in  this  suit  by  agree- 
ment, expressed  or  implied,  of  the  parties. 

The  fact  that  a  railroad  company  publishes  certain  rules 
and  regulations  and  these  rules  and  regulations  are  known 
to  the  consignee,  can  raise  no  expressed  or  implied  contract 
between  them  with  reference  to  said  rules  and  regulations. 

Jones  on  Liens,  2d  Ed.,  Vol.  1,  Sec.  282,  contains  the 
following : 

"A  lien  for  demurrage  in  favor  of  carriers  by  land  is 
not  implied  by  law,  and  cannot  be  asserted,  except  by  virtue 
of  an  express  agreement,  or  of  a  custom  so  recognized  as 
to  have  the  force  of  a  contract.  The  rules  and  regulations 
of  a  railroad  company  providing  for  a  lien  for  demurrage, 


210 


though  published,  are  not  binding  upon  the  consignor  cr 
consignee  of  goods  without  their  consent,  or  the  consent  cf 
one  of  them,  when  the  contract  for  shipping  the  goods  was 
made.  Even  the  knowledge  of  such  rules  by  the  shipper 
or  consignee,  without  assent  thereto,  does  not  bind  him. 
The  law  does  not  presume  assent  to  the  rules  of  a  railroad 
company,  for  damages  caused  by  delay  of  the  consignee 
in  receiving  goods  shipped,  from  the  publishing  of  such 
rules." 

The  case  of  Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Lamm, 
73  111.  App.,  592,  contains  the  following: 

"It  is  insisted,  however,  that  as  appellant  had  adopted 
rules  for  demurrage  charges,  which  were  known  to  appellee, 
and  because  they  had  paid  a  like  charge  in  1890  and  had 
not  protested  against  them  since  that  time,  there  was  such 
acquiescence  as  would  amount  to  a  contract  for  a  lien. 

"Railroad  companies  cannot  create  in  their  favor  a  de- 
murrage lien  on  freight  not  removed  from  a  car  within  a 
short  time,  by  simply  publishing  to  the  public  their  inten- 
tion of  doing  so.  They  may  attempt  it,  and  shippers  and 
consignees  may  be  compelled  to  use  their  roads  for  the 
transportation  of  freight  with  full  knowledge  of  the  publica- 
tion. Detention '  charges  may  be  paid  a  few  times  by  a 
consignee  who  may  feel  that  he  has  been  somewhat  tardy 
in  removing  freight  in  those  particular  instances.  But  for 
all  that,  it  could  not  be  rightfully  held  that  there  was  such 
acquiescence  in  a  rule  for  demurrage  charge  as  would 
amount  to  a  contract  for  it  in  a  future  case  where  the  con- 
signee felt  that  there  was  an  unreasonable  insistence  of  its 
application." 

In  the  case  at  bar  it  appears  from  the  testimony  that 
when  the  appellant's  attention  was  called  to  the  rule  in 
question  he  told  the  agent  of  the  company  that  it  would  be 
impossible  to  get  the  two  cars  unloaded  within  forty-eight 
hours  or  anywhere  near  that  time,  and  that  he  could  not 
and  would  not  comply  with  any  such  rule.  (Abst.,  5; 
Rec.,  25.) 

It  will  appear  from  an  examination  of  the  authorities 
cited  by  appellee  that  none  of  them  are  applicable  to  the 
state  of  facts  as  shown  by  this  record.  Most  of  the  authofi- 


211 


ties  have  no  bearing  on  the  question  of  lien.  Where  the 
lien  is  discussed  it  is  either  obiter  dictum,  or  decided  in 
favor  of  the  railroad  company  on  the  ground  that  the  lien 
was  established  by  expressed  or  implied  contract  between 
the  parties. 

A  large  number  of  the  cases  cited  by  appellee  are  circuit, 
county  and  district  court  cases,  and  are  not  reported.  The 
facts  upon  which  these  decisions  were  based  are  unknown 
and  therefore  worthy  of  no  consideration  by  this  court. 

The  following  are  the  only  cases  cited  by  appellee  that 
have  any  bearing  whatsoever  on  the  question  involved  in 
this  suit: 

•». 

The  case  of  Miller  v.  Mansfield,  112  Mass.,  260,  was  an 
action  of  tort,  for  the  conversion  of  100  barrels  of  flour. 
The  plaintiff  was  the  owner  of  a  bakery  and  had  shipped  to 
him  by  the  defendant's  line  of  railroad  100  barrels  of  flour, 
and  the  defendant  railway  company  refused  to  deliver  the 
fiour  until  certain  charges  were  paid  for  delay  in  unloading 
the  car.  The  court  expressly  held  that  the  parties  contract- 
ed with  reference  to  the  rule  of  the  railroad  company  to 
charge  $2  a  day  for  each  car  for  delay  in  unloading.  The 
court  says,  with  reference  to  this  rule  (page  263): 

"Being  known  to  the  plaintiff,  it  is  to  be  presumed,  in 
the  absence  of  any  evidence  to  the  contrary,  that  the  parties 
contracted  in  reference  to  it.  It  enters  into  and  forms  part 
of  their  contract,  and  the  railroad  company  is  entitled  to 
recover  the  amount  fixed  by  the  usage,  by  virtue  of  the 
plaintiff's  promise  to  pay  it." 

The  case  of  Miller  v.  Georgia  Ry.  Co.,  88  Ga.,  563, 
merely  decided  the  question  as  to  whether  or  not  a  railroad 
had  a  right  to  make  rules  and  regulations  in  regard  to  the 
time  in  which  the  cars  may  be  unloaded,  and  to  fix  a  rea- 
sonable rate  per  day  for  storage  thereafter.  The  question 
as  to  whether  or  not  the  railroad  company  had  a  lien  on 
the  contents  of  the  car  for  this  storage  was  not  involved, 
and  any  language  of  the  court  with  reference  to  the  ques- 
tion of  lien  was  obiter  dictum.  The  suit  was  brought  by 
the  Georgia  Railroad  Company  against  Miller  &  Co.  for 
storage  charges  after  the  goods  had  been  delivered.  More- 
over the  suit  is  decided  upon  the  theory  that  the  parties  con- 


212 


tracted  with  reference  to  the  right  of  the  railroad  company 
to  charge  this  storage.     The  court  says,  on  page  576: 

"Where  regulation  of  this  character  is  known  to  the 
customer  before  the  contract  of  transportation  is  made,  it 
is  to  be  presumed,  in  the  absence  of  any  evidence  to  the 
contrary,  that  the  parties  contracted  with  reference  to  it 
(Miller  v.  Mansfield,  supra),  and  it  is  operative  whether 
indicated  upon  bills  of  lading  or  not,  and  whether  the  ship- 
ments are  made  to  the  order  of  the  consignor  with  the  cus- 
tomary directions  to  notify  the  customer,  or  direct  to  the 
customer  himself." 

The  case  of  the  Kentucky  Wagon  Mfg.  Co.  v.  the 
Louisville  &  Nashville  Railroad  Co.  is  an  unreported  case 
decided  by  the  law  and  equity  court  of  Louisville,  Ken- 
tucky, December  20,  1891,  a  synopsis  of  the  same  being  set 
forth  in  a  note  in  the  50th  Am.  &  Eng.  Rd.  Cases,  page  90. 
In  this  case  also  there  was  no  question  involved  with  ref- 
eience  to  liens,  as  it  was  a  bill  in  equity  filed  by  a  manufac- 
turing company  against  certain  railroads  to  restrain  them 
fiom  refusing  to  deliver  to  the  plaintiff  upon  its  private  side 
tracks  certain  loaded  cars  on  account  of  any  non-compliance 
on  the  part  of  the  manufacturing  company  with  the  rules 
of  the  Louisville  Car  Service  Association  with  reference  to 
demurrage  charges.  The  case  simply  holds,  so  far  as  can 
be  gathered  from  these  notes,  that  common  carriers  have  a 
right  to  make  reasonable  rules  and  regulations. 

The  case  of  Philadelphia  Railroad  Co.  v.  Midvale  Steel 
Co.  (Penn.),  51  Atl.  Reporter,  313,  was  an  action  brought 
by  the  railroad  company  against  the  manufacturing  com- 
pany for  demurrage  charges  after  the  goods  had  been  deliv- 
ered, and  the  case  went  up  to  the  Supreme  Court  on  the 
question  of  the  sufficiency  of  the  affidavit  of  defense.  There 
was  no  question  of  lien  involved  and  none  passed  on  by  the 
court. 

The  case  of  Norfolk  &  Western  Railroad  Co.  v.  Adams 
(Va.),  18  S.  E.  R.,  673,  was  an  action  of  assumpsit  brought 
against  -the  railroad  to  recover  back  certain  sums  of  money 
said  to  be  illegally  exacted  from,  and  paid  by  the  plaintiff 
to  the  railroad  company  on  account  of  demurrage  charges. 
In  this  case  the  court  says: 


2I3 

'The  plaintiffs  in  this  suit  had  notice  of  the  existence 
and  operation  of  these  rules,  and  they  had  paid  the  charges 
for  the  detention  of  the  cars  long  before  the  commencement 
of  the  account  sued  upon ;  and  they  knew  and  agreed  when 
the  shipments  were  made,  that  such  a  charge  would  be 
made,  unless  they  unloaded  their  cars  in  compliance  with 
the  rule  of  the  company  which  gave  to  them  seventy-two 
hours  in  which  to  unload  their  freight  after  notice  of  the 
arrival  of  the  cars  which  they  had  stipulated  to  unload." 

The  court  then  goes  on  and  decides  that  the  rule  in 
question  was  a  reasonable  one.  There  was  nothing  in  the 
case  involving  the  right  of  the  railroad  company  to  claim  a 
lien  for  the  amount  of  these  charges. 

The  case  of  Darlington  v.  Mo.  Pac.  Ry.  Co.  (Mo.  Court 
of  Appeals),  72  S.  W.  Repr.,  126,  was  an  action  of  conver- 
sion brought  by  the  plaintiff  against  the  railroad  company 
for  taking  certain  lumber  belonging  to  the  plaintiff  upon 
which  the  railroad  claimed  certain  demurrage  charges.  The 
court  says,  with  reference  to  this  rule  of  the  railroad  com- 
pany: 

"It  is  conceded  that  plaintiffs  had  knowledge  of  the  ex- 
istence and  terms  of  this  rule,  and  that  they  only  objected  to 
the  payment  of  the  demurrage  charges  on  account  of  the 
weather;  and  it  appears  from  the  evidence  of  Darlington 
that  the  rule  had  theretofore  been  recognized  and  acted  upon 
by  the  plaintiffs;  so  that,  leaving  out  of  consideration  the 
stipulations  in  the  bills  of  lading,  there  is  abundant  evi- 
dence that  plaintiffs  impliedly  agreed  to  be  bound  by  these 
car  service  rules.  *  *  *  In  this  state  demurrage 
charges  as  to  shipments  of  grain  in  carload  lots  are  allowed 
by  statute..  Section  1115,  Revised  Statutes,  1899." 

The  case  of  Norway  Plains  Co.  v.  Boston  &  Maine  Ry. 
Co.,  07  Mass.,  263,  was  an  action  of  contract  upon  the 
agreement  of  the  defendants  to  transport  certain  goods 
from  Rochester  to  Boston,  it  appearing  that  after  the  goods 
had  been  removed  from  the  car  to  a  warehouse  that  they 
were  destroyed  by  fire.  It  will  be  seen  from  this  state  of 
facts  that  there  was  no  question  of  lien  involved  and  any- 
thing in  the  opinion  with  reference  thereto  is  obiter  dictum. 

In  the  case  of  Swan  v.  Railroad,  106  Tenn.,  229,  the  bill 
of  lading  expressly  provided  for  demurrage  charges  and  that 


214 

^aid  charges  should  be  a  lien  upon  the  freight  which  might 
be  held  by  the  railroad  company  until  said  lien  was  paid. 

From  an  examination  of  the  Illinois  cases  cited  in  our 
brief  and  a  careful  consideration  of  the  cases  cited  by  ap- 
pellee there  can  be  no  doubt  that  the  law  is  correctly  set 
forth  in  Jones  on  Liens,  2d  Ed.,  Vol.  1,  Sec.  281,  as  fol- 
lows: 

"A  carrier  has  no  lien  for  charges  not  connected  with 
the  transportation  of  the  goods,  and  not  within  the  contem- 
plation of  the  parties.  Thus,  ordinarily,  a  carrier  has  no 
lien  for  the  storage  of  goods  which  he  has  carried  unless 
there  be  a  special  contract  allowing  him  to  charge  for  stor- 
age. Nor  has  he  a  lien  upon  goods  for  demurrage  arising 
from  the  consignee's  neglect  to  take  them  away  within  a 
reasonable  time  after  notice  to  him  of  their  arrival.  Thus, 
a  railroad  company  cannot  retain  goods  to  satisfy  a  charge 
for  the  detention  of  cars  by  the  failure  of  the  consignee  to 
remove  the  goods  after  notice;  for  the  claim  is  in  the  nature 
of  demurrage,  and  no  lien  exists  for  this.  Such  detention 
is  a  breach  of  contract  simply,  for  which,  as  in  the  case 
of  a  contract  in  reference  to  pilotage  or  port  charges,  the 
party  must  seek  his  redress  in  the  ordinary  manner.  He 
cannot  enforce  it  by  detention  of  goods." 

Appellee's  brief  is  largely  devoted  to  a  discussion  of  the 
benefits  that  would  accrue  to  the  railroad  and  consequently 
to  the  public  if  it  were  enabled  to  make  this  demurrage 
charge  and  enforce  a  lien  therefor,  and  the  great  incon- 
venience and  burden  to  the  railroad  and  therefore  to  the 
public  if  this  lien  does  not  exist. 

This  brief  should  be  addressed  to  the  legislature  and  not 
to  the  courts.  The  province  of  the  judiciary  is  to  construe 
the  laws  and  not  to  make  them.  The  relief  asked  by  ap- 
pellee can  only  be  given  by  the  legislature,  not  by  the  courts. 

Respectfully  submitted. 

LOUIS  ZIMMERMAN, 

Attorney  for  Appellant. 


215 

The   opinion   of   the   Supreme   Court,   filed   February 
17th,  1904,  is  as  follows: 

Present: 

JOHN  P.  HAND,  Chief  Justice. 
BENJAMIN    D.    MAGRUDER,   Justice. 
JAMES  H,  CARTWRIGHT,  Justice. 
JAMES  B.  RICKS,  Justice. 
JACOB  W.  WILKIN,  Justice. 
CARROLL  C.'BOGGS,  Justice. 
GUY  C.  SCOTT,  Justice. 

Docket  Nos.  3206.— Agenda  34.— Oct.  1903. 
Schumacher  v.  Chicago  &  Northwestern  Railway  Co. 

Mr.  JUSTICE  RICKS  delivered  the  opinion  of  the 
court: 

Appellant  brought  an  action  of  replevin  in  a  justice's 
court  in  Lake  county  against  appellee  for  three  tons  of 
coke.  Judgment  was  for  appellee  in  the  justice  court.  On 
appeal  to  the  circuit  court  of  said  county  a  trial  was  had 
,  before  a  jury,  and  the  court  directed  a  verdict  for  appellee 
and  entered  judgment  thereon.  Appeal  was  taken  to  the 
Appellate  Court,  where  the  judgment  of  the  lower  court 
was  affirmed,  and  this  appeal  was  prosecuted. 

Appellant  is  a  resident  of  Highland  Park,  and  in  Jun& 
'1902,  purchased  and  caused  to  be  shipped  to  himself  at 
said  place,  over  appellee's  road  two  cars  of  coke.  The  cars 
arrived  in  Highland  Park  on  June  20,  at  seven  o'clock  in 
the  morning,  and  at  nine  o'clock  in  the  morning  of  the 
same  day  appellee's  station  agent  at  said  point  mailed  ap- 
pellant notice  of  the  arrival  of  the  cars. '  Appellant  is  a 
practicing  lawyer  residing  at  Highland  Park  and  having 
ibis  office  in  the  City  of  Chicago,  and  on  the  same  morning 
of  the  arrival  of  the  cars,  and  shortly  after  the  mailing  of 
the  first  notice,  appellee's  agent  saw  appellant  personally 
and  informed  him  that  said  cars  had  arrived.  At  that  time 
appellee's  agent  did  not  know  the  freight  charges,  and  neith- 
er by  the  first  postal  card  nor  by  verbal  statement  was  ap- 
pellant informed  on  that  day  of  the  freight  charges.  On 
the  morning  of  the  21st  appellee's  agent  again  notified  ap- 


216 

pellant  of  the  arrival  of  said  cars,  sending  notice  by  postal 
card  through  the  mail,  which  was  received  by  appellant  be- 
tween 8.80  and  9  o'clock  in  the  morning  of  that  day.  On 
the  postal  card  so  sent  to  appellant,  after  describing  the 
freight,  was  the  following:  "Which  is  now  at  your  risk; 
please  pay  charges  and  remove  property  within  twenty-four 
hours,  or  same  will  be  charged  storage  or  delivered  to  ware- 
houseman; all  carload  freight  shall  be  subject  to  a  mini- 
mum charge  for  trackage  and  rental  of  one  dollar  per  car 
for  each  twenty-four  hours'  detention,  or  fractional  part 
thereof,  after  the  expiration  of  forty-eight  hours  from  its  ar- 
rival at  destination."  And  across  the  face  of  said  postal 
card  was  stampel  the  following:  "If  this  car  is  not  unload- 
ed within  forty-eight  hours  from  7  A.  M.,  June  21,  1902, 
a  charge  of  one  dollar  per  day,  or  fraction  thereof,  will  be 
made  for  car  service,  for  which  this  company  reserves  a 
lien  upon  the  contents  of  car."  Upon  the  21st  of  June,  and 
after  the  receipt  of  the  postal  card  by  appellant  on  that  day, 
he  went  to  appellee's  station  and  there  paid  its  agent  the 
freight,  taking  a  receipt  therefor,  and  on  each  of  the  freight 
bills  was  stamped  a  notice  identical  with  the  one  last  above 
quoted.  When  appellant  received  the  freight  receipts  he 
called  the  attention  of  appellee's  agent  to  the  notice  with 
reference  to  the  charge  for  car  service  contained  thereon, 
and  stated  to  him  that  he  could  not  get  the  cars  unloaded 
within  forty-eight  hours,  or  anywhere  near  that  time;  also 
recalled  the  fact  that  he  had  had  trouble  a  year  or  so  pre- 
vious to  this  shipment  with  this  same  company  at  the  sam.e 
station,  growing  out  of  appellee's  insistence  upon  the  en- 
forcement of  the  above  rule.  Appellant  then  engaged  one 
James  H.  Duffy,  whose  business  was  the  hauling  of  coal 
and  coke,  to  haul  the  same  for  him,  but  was  informed  by 
said  Duffy  that  he  could  not  begin  the  work  until  the  fol- 
lowing Monday,  June  21  being  on  Saturday.  One  car 
was  unloaded  by  Tuesday,  June  24.  On  Thursday,  June 
26,  the  other  car  was  only  partially  unloaded,  and  appellee, 
through  its  agent,  notified  Duffy,  who  was  hauling  the 
coke,  that  he  could  haul  no  more  until  the  car  service  due 
from  the  delay  in  unloading  had  been  paid.  A  controversy 
then  arose  between  appellant  and  appellee,  which  resulted 
in  the  suing  out  of  the  writ  of  replevin  on  Monday,  June 
30,  there  remaining  about  three  tons  of  coke  in  one  car, 
which  appellee  had  sealed  and  refused  to  allow  to  be  re- 
moved until  the  car  service  was  paid. 


217 

The  evidence  further  shows  that  the  cars,  on  their 
arrival  on  Friday,  June  20,  were  placed  on  a  stub-track, 
where  they  could  be  approached  from  one  side  and  unload- 
ed, and  on  the  21st  of  June  were  placed  at  the  end  of  an- 
other stub-track,  so  that  their  removal  was  unnecessary 
until  they  were  unloaded,  and  could  be  approached  from 
both  sides,  for  the  purpose  of  unloading,  without  interference 
from  switching  so  long  as  they  remained  at  that  point.  The 
two  cars  in  question  came  from  and  belonged  to  other  rail- 
road lines,  one  being  from  the  Baltimore  &  Ohio  Railroad 
Company  and  the  other  from  the  Illinois  Central  Railroad 
Company;  that  appellee  had  no  warehouse  for  the  unload- 
ing of  bulk  freight,  such  ^as  car-loads  of  coal  and  coke,  at 
Highland  Park  Station,  and  that  freight  such  as  that  in 
question  is  uniformly  loaded  and  unloaded  by  the  shipper 
and  consignee. 

The  evidence  further  shows  that  in  what  was  called 
"Chicago  territory,"  and  embracing  a  considerable  scope 
of  country  surrounding  the  City  of  Chicago,  and  including 
Highland  Park,  was  an  association  called  the  "Chicago 
Car  Service  Association,"  which  was  a  joint  association 
including  all  the  railroads  within  that  territory,  all  of 
which  united  in  the  selection  of  a  single  agent,  known 
as  the  "Car  Service  Association  agent,"  the  purpose  and 
business  of  which  association  were  to  facilitate  the  load- 
ing and  unloading  of  cars  and  for  the  securing  of  prompt 
service  to  shippers ;  that  this  agency  or  association  had 
existed  since  1888,  and  that  appellee  was  a  member  of 
such  association;  that  the  United  States,  with  reference 
to  railroad  traffic,  was  divided  into  forty-two  districts, 
each  having  a  similar  association;  that  certain  rules,  de- 
signed to  effectuate  the  purpose  of  such  association,  were 
formulated  and  published  by  it  and  observed  by  all  its 
members  and  brought  to  the  attention  of  shippers,  as  busi- 
ness between  them  arose  and  was  conducted ;  that  among 
the  rules  were  rules  2,  4  and  5,  as  follows  : 

"2.  Forty-eight  hours'  free  time  will  be  allowed  for 
loading  or  unloading  all  cars,  whether  on  public  tracks 
or  on  private  tracks,  at  the  expiration  of  which  time  a 
charge  of  one  dollar  per  car  per  day,  or  fraction  thereof, 
shall  be  made  and  collected  for  the  use  of  cars  and  trackc 
held  for  loading  or  unloading  or  subject  to  the  orders  of 
consignors  or  consignees  or  their  agents. 


218 

"4.  In  calculating  time,  Sundays  and  the  following 
holidays  are  excepted :  New  Year's  Day,  Washington's 
Birthday,  Decoration  Day,  Fourth  of  July,  Labor  Day, 
Thanksgiving  Day  and  Christmas. 

"5.  On  cars  arriving  after  6  p.  m.  of  any  day,  car 
•  service  will  be  charged  after  the  expiration  of  forty-eight 
hours  from  6  p.  m.  on  the  day  following." 

\  The  evidence  showed  that  in  the  City  of  Chicago  alone 
there  were  shipped  in,  approximately,  7,500  cars  of  coal 
and  coke  every  month;  that  the  average  earning  capacity 
of  freight  cars  upon  twenty-nine  railroads  in  the  associa- 
tion, for  the  year  1901,  was  $2.42,  and  on  appellee's  road 
$2.15  per  day. 

Under  the  above  state  of  facts  appellee  contends  that 
•it  was  entitled  to  charge  a  car  service  or  car  track  ser- 
vice of  one  dollar  per  day,  after  the  expiration  of  forty- 
eight  hours,  upon  these  cars,  and  that  it  was  entitled  to  a 
lien  upon  the  coke,  the  same  being  the  freight  contained 
in  them,,  for  the  payment  of  such  charges.  Both  of  these 
propositions  are  denied  by  appellant,  and  arise  upon  the 
peremptory  instruction  for  a  verdict,  given  by  the  trial 
court. 

Under  the  constitution  and  laws  of  this  state  railroads 
are  public  highways  and  railroad  corporations  are  quasi 
public  corporations.  They  are  chartered  by  the  state  and 
may  invoke  the  right  of  eminent  domain  for  the  acquire- 
ment of  lands  necessary  for  the  conduct  of  their  business. 
Regarding  them  as  public  agencies,  discharging  duties  in 
which  the  public  is  interested,  the  state  regulates  and  con- 
trols their  rates  and  tolls,  both  for  the  carrying  of  freight 
and  passengers,  and  in  many  other  respects  regulates  and 
controls  their  operation.  Upon  the  payment  or  tender  of 
the  legal  tolls,  freight  or  fare,  such  companies  are  required 
to  furnish  cars  and  transport  freight  and  passengers  with- 
in a  reasonable  time,  and  upon  their  failure  to  do  so  they 
are  subject  to  treble  damages  to  the  party  aggrieved  and 
in  addition  thereto  a  penalty  or  forfeiture  to  the  school 
fund  of  the  state.  (Kurd's  Stat.  1899,  chap.  114,  pars. '84, 
85.)  They  must  receive 'and /transport  cars  loaded  and  un- 
loaded over  their  lines,  and  in  doing  so  assume  the  liability 
of  a  common  carrier  as  to  both  such  cars  and  freight. 
(Teoria  and  Pekin  Union  Railway  Co.  vs.  Chicago,  Rock 


219 

Island  and  Pacific  Railway  Co.,  109  -111.,  135.)  They  may 
not  discriminate  against  shippers  in  rates  or  facilities  for 
shipping,  and  are  required  to  make  special  provision  for 
the  handling  and  shipping  of  grain.  All  of  these  regula- 
tions by  the  state  are  justified  and  sustained  upon  the 
ground  that  the  state  is  interested  in  the  prompt  and 
proper  carriage  of  its  products  and  the  commerce  of  its 
people,  and  it  would  seem  that  reasonable  rules  and  regu- 
lations adopted  by  such  corporations,  conducive  to  the 
proper  discharge  of  the  public  duty,  should,  where  they 
are  not  in  violation  of  some  positive  law,  be  sustained. 

Railroads,  as  to  freights  committed  to  their  charge, 
during  the  period  of  transport  and  until  they  are  delivered, 
bear  two  well  recognized  relations.  While  in  transit,  and 
for  a  reasonable  time  after  reaching  the  point  of  destina- 
tion, they  owe  the  duties  and  bear  the  relation  of  common 
carriers ;  and  when  the  car  containing  the  freight  is  deliv- 
ered to  the  consignee  upon  his  own  track  or  at  the  place 
selected  by  him  for  unloading,  if  he  have  one,  or  to  the 
consignee  upon  the  company's  usual  and  customary  track 
for  the  discharge  of  freight,  with  reasonable  and  proper 
opportunity  to  the  consignee  to  take  the  same,  or  when 
placed  in  the  warehouse  of  such  company  or  the  warehouse 
..of  another  selected  by  them,  in  any  and  all  such  cases  such 
companies  then  bear  to  such  freight  the  relation  of-  ware- 
housemen. (Peoria  and  Pekiri  Union  Railway  Co.  vs. 
United  States  Rolling  Stock  Co.,  136  111.,  643;  Gregg  vs. 
Illinois  Central  Railroad  Co.,  147  id.,  550.)  If  the  cars 
in  which  such  freight  is  shipped  are  the  property  of  another 
railroad  than  that  of  the  company  transporting  the  same 
to  the  point  .of  destination,  such  latter  company  bears  the 
same  relation  to  such  cars  as  to  the  freight'  therein. 
(Peoria  and  Pekin  Union  Railway  Co,  vs.  United  States 
Rolling  Stock  Co.,  supra.)  Such  are  the  duties  of  such 
^companies  appertaining  to  bulk  freight  in  carload  lots, 
which,  it  may  be  said,  by  the  uniform  rule  and  custom  of 
this  country  are  to  be  loaded  and  unloaded  by  the  shipper 
and  consignee.  Small  or  package  freight,  of  such  charac- 
ter and  bulk  that  that  belonging  to  many  distinct  owners 
may  be  shipped  in, a  single  car,  is  commonly  loaded  and 
unloaded  by  the  transporting  company  or  companies. 
When  such  freight  reaches  the  point  of  destination  and  is 
nlaced  in.  the  freight,  depot  or  warehouse  of  such  company 
it  is  held  by  such  company  as  a 'warehouseman,  and  when 


220 


a  railroad  company  carries  freight  to  its  point  of  destina- 
tion and  stores  the  same  in  its  warehouse,  and  the  relation 
of  warehouseman  is  established  by  the  failure  to  remove 
the  property  within  a  reasonable  time,  the  liability  of  a 
warehouseman  attaches,  and  not  the  liability  of  a  common 
carrier.  Illinois  Central  Railroad  Co.  vs.  Alexander,  20 
111.,  24;  Porter  vs.  Chicago  and  Rock  Island  Railroad  Co., 
id.,  408;  Merchants'  Dispatch  Transportation  Co.  vs.  Hal- 
lock,  64  id.,  284;  Illinois  Central  Railroad  Co.  vs.  Friend, 
id.,  303;  Rothschild  vs.  Michigan  Central  Railroad  Co.,  69 
id.,  164;  Merchants'  Dispatch  and  Transportation  Co.  vs. 
Moore,  88  id.,  136 ;  Anchor  Line  vs.  Knowles,  66  id.,  150. 

It  is  the  duty  of  the  consignee  to  take  notice  of  the 
time  of  the  arrival  of  freight  shipped  to  him  and  to  be  pres- 
ent and  receive  the  sann3  upon  arrival,  and  he  is  not  en- 
titled to  notice  trom  the  company  that  the  same  has  ar- 
rived, but  the  company  is  authorized  to  store  such  freight 
and  to  be  relieved  of  its  duty  as  a  common  carrier  (Merch- 
ants' Dispatch  Transportation  Co.  vs.  Hallock,  supra),  and 
when  such  freight  is  in  the  warehouse  the  railroad  com- 
pany may  charge  storage  upon  the  same,  and  it  has  a  lien 
upon  the  freight  so  stored  for  its  storage  charges,  and  this 
rule  obtains  although  the  company  may  have  given  the 
consignee  notice  to  remove  the  property  within  twenty- 
four  hours.  Richards  vs.  Michigan  Southern  and  North- 
ern Indiana  Railroad  Co.,  20  111.,  405;  Porter  vs.  Chicago 
and  Rock  Island  Railroad  Co.,  supra;  Illinois  Central  Rail- 
road Co.  vs.  Alexander,  supra. 

When  a  railroad  company  delivering  freight  at  its 
point  of  destination  has  no  warehouse  at  that  point  suit- 
able for  the  storage  of  bulk  freight  in  carload  lots,  and 
the  property  is  of  such  character  that  the  cars  in  which 
it  is  transported  furnish  a  proper  and  safe  place  for  the 
same,  so  that  it  is  not  liable  to  damage  or  deterioration 
arising  from  heat  or  cold  or  the  elements,  there  would 
seem  to  be  no  reason  for  requiring  the  transporting  com- 
pany to  seek  a  warehouse  of  another  and  add  the  cost  of 
removal  to  the  cost  of  storage  when  said  freight  may  prop- 
erly be  held  in  storage  in  the  cars  in  which  the  same  was 
carried;  and  after  notice  to  the  consignee,  and  a  reason- 
able time  to  remove  the  same,  reasonable  storage  charge- 
may  be  collected  therefor  and  the  freight  held  for  the  pay- 
ment thereof.  Miller  vs.  Mansfield,  112  Mass.,  260;  Mille  - 


221 


vs.  Georgia  Railroad  Co.,  88  Ga.,  563;  Gregg  vs.  Illinois 
Central  Railroad  Co.,  147  111.,  550. 

In  Gregg  vs.  Illinois  Central  Railroad  Co.  the  action 
was  for  damage  to  grain  by  water,  which  had  been  stored 
by  the  railroad  company  in  a  warehouse  in  Augusta,  Geor- 
gia. The  grain  was  not  received  promptly  upon  arrival 
at  its  destination  and  was  stored,  and  while  in  storage  was 
injured  by  a  flood.  In  speaking  of  the  duty  of  the  com- 
pany with  reference  to  such  freight,  this  court  said  (p.  560) : 
'The  railroad  company  was  not  required  to  keep  the  corn 
in  its  cars  on  track  indefinitely,  and  although  the  consignee 
was  in  default  in  not  receiving  the  freight  after  reasonable 
time  and  opportunity  had  been  afforded  in  which  to  take  it, 
the  carrier  could  not  abandon  it,  but  was  required  to  exer- 
cise ordinary  and  reasonable  care  for  its  preservation  as 
warehouseman.  In  the  exercise  of  such  care  it  might 
leave  it  in  the  cars,  store  it  in  its  own  warehouse,  assuming 
the  liability  of  bailee  or  warehouseman  therefor,  or  it  might 
with  the  exercise  of  like  degree  of  care  in  selecting  a  re- 
sponsible and  safe  depository,  store  the  grain  in  an  ele- 
vator or  warehouse  at  the  expense  and  risk  of  the  owner." 

In  Miller  vs.  Georgia  Railroad  Co.,  supra,  it  is  said  (p. 
563) :  "It  is  well  settled  that  the  carrier,  in  addition  to  its 
compensation  for  the  carriage  of  goods,  has  the  right  to 
charge  for  their  storage  and  keeping,  as  a  warehouseman, 
for  whatever  time  they  remain  in  its  custody  after  reason- 
able opportunity  has  been  afforded  the  owner  to  remove 
them ;  and  we  think  where  the  carriers'  duty  ends  with  the 
transportation  of  the  car  and  its  delivery  to  the  customer, 
and  no  further  service  is  embraced  in  the  contract,  the  car- 
rier, after  a  reasonable  time  has  been  allowed  for  unload- 
ing, is  as  much  entitled  to  charge  for  the  further  use  of  its 
car  as  it  would  be  for  the  use  of  its  warehouse.  We  know 
of  no  good  reason  why  it  should  be  restricted  to  the  latter 
method  of  storage.  There  is  no  law  which  inhibits  the  use 
of  cars  for  this  purpose,  or  which  requires  unloading  and 
removal  of  the  goods  to  some  other  structure  before  any 
charge  for  storage  can  attach.  This  method  of  storage 
may,  in  many  cases,  be  as  effectual  as  any  other.  Indeed,  it 
may  serve  the  customer's  interest  and  convenience  much 
better  to  have  the  car  placed  at  his  own  place  of  business, 
where  he  may  unload  it  himself  or  where  it  may  be  unload- 
ed by  purchasers  as  the  goods  are  sold,  thus  saving  dray- 


222 


age  and  other  expenses,  than  to  have  it  unloaded  by  the 
carrier  and  the  goods  stored  elsewhere  at  the  consignee's 
expense.  And  if  a  customer  whose  duty  it  is  to  unload, 
and  who,  failing  to  do  so  within  a  reasonable  time,  accepts 
the  benefit  of  storage  in  a  car  by  requesting  or  permitting 
the  carrier  to  continue  holding  it  unloaded  in  service  and 
subject  to  his  will  and  convenience  as  to  the  time  of  un- 
loading, he  cannot  be  heard  to  complain  of  the  method  of 
storage,  and  to  deny  the  right  to  any  compensation  at  all 
for  this  service  on  the  ground  that  some  other  method  was 
not  resorted  to.  He  may  insist  that  the  rate  fixed  shall  not 
be  unreasonable  or  excessive,  but  the  law  cannot  be  in- 
voked to  declare  that  no  compensation  whatever  shall  be 
charged  for  such  extra  service." 

In  Miller  vs.  Mansfield,  supra,  it  was  said :  "It  is  not 
material  that  the  goods  remained  in  the  cars  instead  of 
being  put  into  a  storehouse/* 

"In  the  case  at  bar  appellant  did  not  discharge  his  duty 
to  the  appellee  by  being  present  and  ready  to  receive  his 
freight  upon  its  arrival.  Within  two  or  three  hours  of  its 
arrival  he  was  notified  thereof,  and  after  it  had  lain  there 
twenty-four-  hours  and  said  car  was  placed  where  appellant 
had  full  and  fair  opportunity  to  remove  the  freight  without 
interference  in  any  form  arid  to  approach  the  car  from  both 
sides  for  that  purpose,  and  when  appellee's  duty  as  a  com- 
mon carrier  had  ceased,  appellant  was  notified  that  he  must 
remove  the  same  within  forty-eight  hours,  or  a  car  service 
or  storage  charge,  which,  under  the  circumstances,  must  be 
held  to  be  the  same  thing,  of  one  dollar  per  car  would  be 
insisted  upon.  Appellant  also  knew,  by  the  previous  deal- 
ings betwee.n  himself  and  appellee,  that  such  rule  obtained, 
and  unless  he  could  show  that  the  limit  of  time  was  un- 
reasonable or  the  charge  excessive,  it  would  seem  appel- 
lee's contention  to  charge  as  for  storage  should  be  upheld. 

It  is  also  urged  by  appellee  that  the  right  to  demand 
such  charge  and  enforce  the  same  by  lien  arises  from  the 
unreasonable  detention  of  the  cars  in  question  by  appel- 
lant, and  that  such  charge  is  in  parity  with  and  in  the  na- 
ture of  demurrage  as  it  exists  under  the  maritime  law,  and 
not  based  upon  the  theory  of  storage  charges ;  that  it  was 
the  duty  of  appellant  to  take  notice  of  the  arrival  of  his 
freight  and  to  be  present  and  ready  to  receive  the  same 
when  it  did  arrive,  and  that  having  failed  to  do  this,  he  hav- 


223 

ing  notice  of  the  rule  of  the  company  to  charge  for  the 
detention  beyond  the  period  of  forty-eight  hours,  a  car 
and  track  service  in  the  nature  of  demurrage  may  properly 
be  demanded.  The  evidence  in  this  case  shows  that  by  the 
enforcement  of  the  rule  here  insisted  upon,  the  transporta- 
tion facilities  in  the  car  service  territory  here  involved  was 
increased  practically  one  hundred  per  cent.,  and  that  only 
about  seven  per  cent,  of  the  shippers  or  consignees, 
through  its'  operation,  hold  their  cars  overtime.  If  such 
common  carriers  must  comply  with  our  statute  and  must 
furnish  transportation  for  people  and  freight  when  de- 
manded, and  such  companies  have  made  proper  provision 
in  equipping  their  roads  with  an  ample  supply  of  rolling 
stock,  and  yet,  because  of  the  dilatoriousness  or  perversity 
of  shippers  and  consignees,  cars  may  be  held  indefinitely 
at  loading  and  discharging  points,  contrary  to  the  desires 
and  interests  of  such  companies,  then  it  must  be  plain  that 
the  statute  must  either  fall  as  a  dead  letter  or  its  enforce- 
ment must  work  great  injustice  to  such  companies. 

This  precise  question  seems  not  to  have  been  before 
this  court  previous  to  the  present  case:  In  1891  the  at- 
torney general  of  this  state,  in  an  opinion  to  the  Railroad 
and  Warehouse  Commissioners  in  complaint  No.  64,  Union 
Brewing  Co.  of  Peoria  vs.  Chicago,  Burlington  and  Quincy 
Railroad  Co.,  and  complaint  No.  71,  Lyon  &  Scott  vs. 
Peoria  and  Pekin  Union  Railroad  Co.,  said:  "Section  5 
of  the  act  in  relation  to  receiving,  carrying  and  delivering 
grain  in  this  state  provides  that  a  consignee  of  grain  trans- 
ported in  bulk  shall  have  twenty-four  hours,  free  of  ex- 
pense, after  actual  notice  of  arrival,  in  which  to  remove  the 
same  from  the  cars  of  such  railroad  corporation.  There 
would  seem  to  be  an  implied  right,  under  the  statute,  to 
charge  for  a  longer  detention  than  the  twenty-four  hours 
which  the  statute  names.  Indeed,  no  reason  is  perceived, 
in  law  or  justice,  why  an  unreasonable  and  unnecessary  de- 
tention of  cars  by  consignees  should  not  be  paid  for ;  and 
the  Car  Service  Association  seems,  from  the  proof  before 
us,  to  be  only  an  agency  established  to  keep  account  of 
claims  so  arising  and  enforce  them.  The  charges  so  made 
were  thought  to  be  reasonable,  under  all  circumstances. 
*  *  *.  Demurrage  is  an  important  subject,  which  has 
arisen  in  a  practical  way  only  within  late  years  and  long 
after  our  statute  for  the  regulation  of  railroads  was  passed. 


224 

It  does  not,  however,  follow  that  because  there  is  no  statu- 
tory regulation  of  the  question  there  is  no  law." 

Mr.  Elliott,  in  his  work  on  Railroads  (Vol.  4,  Sec. 
1567),  says :  "But  while  it  is  probably  true  that  this  right 
is  derived,  by  analogy,  from  the  maritime  law  as  adminis- 
tered in  America,  the  more  recent  authorities  have  almost 
unanimously  upheld  the  right  of  railroad  companies  to 
make  demurrage  charges  in  proper  cases.  As  said  by  one 
of  the  courts,  'we  see  no  satisfactory  reason  why  carriers 
by  railroads  should  not  be  entitled  to  compensation  fdr  the 
unreasonable  delay  or  detention  of  their  vehicles  as  well 
as  carriers  by  sea.'  After  a  carrier  has  completed  its  ser- 
vices as  such,  it  has  a  right  to  charge  extra  compensation 
for  storing  the  goods  in  a  warehouse  and  keeping  them, 
after  the  consignee  has  had  a  reasonable  time  in  which  to 
remove  them.  Why,  then,  when  its  duties  as  a  carrier  have 
been  performed  and  a  reasonable  time  has  elapsed,  is  it  not 
as  much  entitled  to  additional  compensation  for  the  use 
of  its  cars  and  tracks  as  for  the  use  of  its  warehouse?  Cer- 
tainly a  customer  whose  duty  it  is  to  unload,  or  who  un- 
reasonably delays  the  unloading,  of  a  car  for  his  own  bene- 
fit, ought  not  to  complain  if  he  is  made  to  pay  a  reasonable 
sum  for  the  unreasonable  delay  caused  by  his  own  act. 
But  this  is  not  all.  The  public  interests  also  require  that 
cars  should  not  be  unreasonably  detained  in  this  way." 
And  to  the  like  effect  are  Miller  vs.  Georgia  Railroad  Co., 
supra;  Norfolk  and  Western  Railroad  Co.  vs.  Adams,  90 
Va.,  393;  44  Am.  St.  Rep.,  916;  Darlington  vs.  Missouri 
Pacific  Railroad  Co.,  72  S.  W.  Rep.,  122;  Interstate  Com- 
merce Commission  vs.  D.,  G.  H.  &  M.  Ry.  Co.,  74  Fed. 
Rep.,  803;  American  Warehouse  Ass.  vs.  Illinois  Central 
Railroad  Co.,  7  Interstate  Com.  Rep.,  556. 

Nor  do  we  think  it  necessary  to  the  existence  of  such 
lien  that  it  arise  from  a  specific  contract  providing  for  the 
same,  but  that  such  right  and  contract  may  arise  by  impli- 
cation, as  in  the  case  of  warehouse  charges  to  a  railroad 
company  that  has  stored  goods  transported  by  it  when  not 
received  by  the  consignee  promptly  at  the  place  of  delivery. 
Miller  vs.  Mansfield,  supra;  Merchants'  Dispatch  and 
Transportation  Co.  vs.  Moore,  88  111.,  136;  Illinois  Central 
Railroad  Co.  vs.  Alexander,  20  id.,  24;  Darlington  vs.  Mis- 
souri Pacific  Railroad  Co.,  supra;  Barker  vs.  Brown,  138 
Mass.,  340. 


225 

It  is  claimed,  however,  by  appellant  that  the  case  of 
Chicago  and  Northwestern  Railway  Co.  vs.  Jenkins,  103 
111.,  588,  lays  down  the  rule  contrary  to  the  views  we  have 
above  expressed,  and  that  that  case  should  be  controlling 
in  the  present  case.  We  think  not.  That  case  seems  to 
have  related  to  or  grown  out  of  the  shipment  of  goods  in 
less  quantity  than  a  carload  lot.  The  character  of  the 
goods  was  of  a  perishable  nature,  and  such,  if  removed 
from  the  cars,  must  be  stored,  and  in  distinguishing  that 
case  from  cases  under  the  maritime  law,  and  denying  that 
the  rule  applicable  in  contracts  of  shipment  under  the  lat- 
ter law  applied  to  railroad  companies,  it  was  said  (p.  600) : 
"But  the  mode  of  doing  business  by  the  two  kinds  of  car- 
riers is  essentially  different.  Railroad  companies  have 
warehouses  in  which  to  store  freights;  owners  of  vessels 
have  none.  Railroads  discharge  cargoes  carried  by  them ; 
carriers  by  ship  do  not,  but  it  is  done  by  the  consignee." 
Thus,  it  will  be  seen  that  the  court  could  not  have  had  in 
mind  the  case  of  the  shipment  of  goods  of  the  character 
here  involved  by  carload  lots,  and  where  the  undisputed 
evidence  shows  that  the  rule  is  that  such  freight  shall  be 
loaded  by  the  shipper  and  unloaded  by  the  consignee,  and 
that  railroads  do  not  have  warehouses  in  which  to  store 
that  class  of  goods. 

Appellant  contends  that  the  trial  court  erred  in  not 
permitting  him  to  show,  as  tending  to  show  whether  the 
coke  was  unloaded  within  a  reasonable  time,  the  distance 
from  his  house  to  the  station  where  said  car  was  placed  for 
unloading.  In  this,  we  think,  there  was  no  error.  If  such 
is  the  rule,  and  as  there  was  57,000  pounds  of  coke  in  this 
shipment,  and  it  should  appear  by  the  evidence  that  the  dis- 
tance from  the  consignee's  home  to  the  station  should  be 
such  that  but  one  load  of  coke  could  be  hauled  a  day,  and 
that  a  ton  at  a  load  was  all  that  could  be  hauled,  taking 
the  condition  of  the  roads  into  consideration,  then  accord- 
ing to  appellant's  contention,  he  would  be  entitled  to  hold 
the  cars  in  question  at  this  place,  without  charge,  for  more 
than  a  month.  Such  a  rule  would  practically  take  out  of 
business,  under  the  supposed  case,  the  rolling  stock  of  a 
company  for  one-twelfth  of  the  year,  to  the  prejudice  of 
other  shippers  and  to  the  detriment  of  the  public  interests. 
The  correct  rule  must  be  that  the  consignee  shall  have  a 
reasonable  time,  after  having  knowledge  of  the  arrival  of 
his  freight,  to  get  the  necessary  help  and  means  to  remove 


226 

the  same ;  and  it  cannot  be  presumed  that  he  is  to  do  this 
by  the  employment  of  the  fewest  number  of  persons  or 
teams  that  can  be  employed  at  such  work,  and  at  the  same 
time  have  it  said  that  any  effort  whatever  is  being  made  to 
remove  the  freight.  No  circumstance  is  shown  here  why 
a  number  of  teams  and  abundance  of  help  could  not  have 
been  obtained,  by  proper  effort,  to  have  unloaded  this  coke 
within  the  forty-eight  hours  fixed  by  the  rule,  allowing  for 
the  Sunday;  and  if  it  could  not,  it  cannot  be  maintained,  as 
we  think,  that  appellee  should  stand  the  loss  of  appellant's 
failure  or  inability  to  discharge  his  duty  and  perform  his 
contract.  Circumstances  might  arise,  and  doubtless  will, 
in  such  cases,  when,  in  determining  what  shall  be  a  reason- 
able time,  many  things  are  necessary  to  be  taken  into  con- 
sideration, but  the  distance  that  the  commodity  is  to  be 
hauled  when  removed  from  the  company's  cars,  it  would 
seem,  should  not  be  one  of  them. 

It  is  urged,  further,  that  a  lien  ought  not  to  be  accord- 
ed common  carriers  in  such  cases,  but  they  should  be  left 
to  their  action  upon  the  case  or  in  assumpsit.  There  is 
no  law  preventing  the  sale,  by  the  consignee,  of  the  cargo, 
at  the  point  of  destination,  to  one  or  many  persons  who 
may  be  wholly  irresponsible  and  as  against  whom  suits 
would  be  unavailing.  The  object  of  such  a  rule  cannot  be 
so  much  for  the  recovery  of  a  revenue  as  the  enforcement 
of  a  rule  that  is  to  the  benefit  of  all  the  shippers,  and  there- 
by a  public  benefit.  The  charge  must  be  said  to  be  little 
more  than  nominal,  and  yet  the  evidence  discloses  that  its 
imposition  in  such  cases  has  had  a  highly  beneficial  effect. 
No  question  is  made  as  to  the  reasonableness  of  the  charge, 
and  if  there  were,  it  could  have  no  effect  in  the  case  at  bar, 
for  the  reason  that  appellant  absolutely  denies  the  right  of 
appellee  to  any  charge  of  compensation  and  made  no  ten- 
der of  any  portion  of  it.  Russell  vs.  Koehler,  66  111.,  459; 
Hoyt  vs.  Sprague,  61  Barb.,  491 ;  Schouler  on  Bailments, 
Sec.  125. 

The  views  above  expressed  as  to  the  rule  obtaining  to 
such  charges,  whether  regarded  as  storage  charges  or  de- 
murrage or  car  service,  seems  to  be  in  keeping  with  the 
weight  of  the  modern  decisions  upon  the  questions,  and, 
we  believe,  will  tend  to  the  public  welfare. 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


227 


SUPREME  COURT,  STATE  OF  MISSISSIPPI. 
OCTOBER  TERM,  A.  D.  1903. 


NEW  ORLEANS  &  NORTHEASTERN  R.  R.  CO. 

VS. 
A.  H.  GEORGE  &  CO. 

UNREPORTED. 

Hon.  Albert  H.  Whitfield,  Chief  Justice. 

Hons.  S.  S.  Calhoun  and  Jeff  Truly,  Associate  Justices. 

On  the  16th  day  of  November,  1903,  the  following 
opinion  was  rendered  and  delivered  by  the  court. 
Truly,  J.,  reversed  and  remanded. 

STATEMENT  OF  FACTS, 

On  the  3rd  day  of  February,  1902,  A.  H.  George,  do- 
ing business  as  A.  H.  George  &  Company,  instituted  this 
suit  in  replevin  against  the  New  Orleans  and  Northeastern 
Railroad  Company  for  eighty-six  tons  of  cotton  seed  hulls 
contained  in  five  box  cars  in  the  possession  of  defendant 
company,  charging  that  the  same  was  wrongfully  detained 
by  the  railroad  company.  Upon  the  trial  the  railroad  com- 
pany contended  that  the  plaintiff  was  not  entitled  to  the 
possession  of  the  hulls  because  of  failure  on  his  part  to  pay 
certain  "demurrage"  charges  which  the  railroad  company 
was  entitled  to  under  certain  rules  of  the  "Alabama  Car 
Service  Association"  and  the  Mississippi  Railroad  Com- 
mission. The  rules  referred  to  are  as  follows : 

ALABAMA  CAR   SERVICE  ASSOCIATION. 

RULE  I. 
Per  Diem  Charges. 

All  property  shipped  in  carload  lots  shall  be  subject 
to  car  service  and  trackage  charges  in  accordance  with  the 
following  regulations : 


228 

A  charge  of  one  dollar  per  car  per  day  or  fraction 
thereof  shall  be  made  for  the  delay  of  cars  and  the  use  of 
tracks  within  the  following  described  territory,  after  forty- 
eight  hours  from  arrival  thereat,  not  including  Sundays  or 
legal  holidays. 

RULE  II. 
Rules  for  Reckoning  Time. 

On  cars  arriving  during  the  forenoon  after  7  a.  m.  and 
held  for  orders  from  consignees,  car  service  will  be 
charged  after  the  expiration  of  forty-eight  hours  from  12 
m.  of  that  day,  and  on  cars  arriving  after  12  m.  to  and  in- 
cluding 7  a.  m.  of  the  following  day,  car  service  charges 
will  commence  forty-eight  hours  from  7  a.  m.  of  the  follow- 
ing day,  provided  notification  has  been  given  during  that 
day  previous  to  this  time.  Should  notification  not  be 
given  within  the  time,  car  service  will  commence  forty- 
eight  hours  from  the  hour  of  notification. 

On  cars  consigned  to  team  tracks  or  private  tracks 
and  which  may  be  so  delivered  on  advance  or  standing  or- 
ders from  consignees,  car  service  will  be  charged  after  the 
expiration  of  forty-eight  hours  from  the  time  such  cars 
are  placed  on  the  tracks  designated. 

RULE  III. 
Cars  for  Delivery  on  Team  Tracks  and  Private  Sidings. 

Cars  containing  freight  to  be  delivered  on  team  tracks 
or  private  sidings  shall  be  delivered  on  the  track  designated 
immediately  upon  arrival,  or  as  soon  thereafter  as  the  or- 
dinary routine  of  yard  work  will  permit. 

(a)  The  time  consumed  in  placing  such  cars,  or  in 
switching  cars  for  which  directions  are  given  by  consignees, 
after  arrival,  shall  not  be  included  when  computing  deten- 
tion. 

(b)  The  delivery  of  cars  consigned  to  or  ordered  to 
sidings  used  exclusively  by  certain  firms  or  individuals  lo- 
cated on  such  sidings  shall  be  considered  to  have  been  ef- 
fected either  when  such  cars  have  been  placed  on  the  sid- 
ing so  designated ;  or,  if  such  sidings  be  full,  when  the  road 
offering  the  cars  would  have  made  delivery  had  such  sid- 
ings permitted. 


229 

(c)  No  cars  shall  be  held  from  delivery  in  any  man- 
ner, provided  it  is  possible  to  secure  their  delivery,  and 
the  manager  is  charged  with  the  duty  of  seeing  that  the 
purposes  for  which  this  association  is  formed  are  not  evad- 
ed by  the  action  of  any  railroad  company. 

(d)  On  deliveries  to  sidings  used  exclusively  by  cer- 
tain firms  or  individuals  located  on  said  sidings,  and  where 
consignees  or  consignors  refuse  to  pay,  or  unnecessarily 
defer  settlement  of  bills  for  car  service  charges,  the  agent 
will  decline  to  switch  cars  to  the  sidings  where  such  par- 
ties are  located,  notifying  them  that  deliveries  will  only' 
be  made  to  them  on  the  public  delivery  tracks  of  the  com- 
pany after  the  payment  of  freight  charges  at  his  office,  and 
will  promptly  notify  the  manager  of  the  action  taken. 


RULE  IX. 

Collections. 

Agents  will  collect  car  service  charges  accruing  under 
the  rules  of  the  association  with  the  same  regularity  and 
promptness  as  other  transportation  charges,  and  the  man- 
ager is  charged  with  the  duty  of  seeing  that  these  rules 
are  enforced  without  discrimination. 

(a)  It  is  the  duty  of  the  agent  to  demand  car  service 
on  all  cars  before  delivering  them  where  car  service  has 
accrued  between  notification  and  ordering.     It  is  also  the 
duty  of  an  agent,  where  he  has  any  doubt  about  car  ser- 
vice being  paid,  to  demand  one  dollar  car  service  at  the 
end  of  the  free  time  allowed  for  unloading  cars,  and  if  said 
car  service  is  refused,  to  decline  to  deliver  the  car  and  to 
allow  the  lading  to  be  taken  from  it,  either  by  sealing  the 
car,  locking  the  car,  or  placing  it  where  it  is  not  accessible 
to  consignee. 

(b)  All  collections  for  car  service  charges  shall  be- 
long to  the  road  upon  whose  tracks  the  cars  are  detained. 

(c)  Railroads  shall  not  discriminate  between  persons 
in  car  service  charges.     If  a  railroad  company  collects  car 
service  from  one  person,  under  the  car  service  rules,  it 
must  collect  of  all  who  are  liable. 


230 

RULE  XII. 
Storage. 

No  railroad  company,  member  of  this  association, 
shall  provide  free  storage  in  its  freight  warehouses  of  con- 
tents of  loaded  cars  subject  to  car  service  charges,  but  any 
railroad  company  may  unload  cars  subject  to  car  service 
charges  into  its  own  warehouse  or  into  public  or  private 
warehouses  subject  to  the  following  rule  and  regulations : 

MISSISSIPPI   RAILROAD  COMMISSION. 
RULE  I. 

Railroad  Companies  to  Give  Prompt  Notice  of  Arrival  of 

Goods. 

Railroad  companies  shall  give  prompt  notice  by  mail 
or  otherwise  to  consignee  of  arrival  of  goods,  together 
with  wreight  and  amount  of  freight  charges  due  thereon, 
and  when  goods  or  freight  of  any  kind  in  carload  quantities 
arrive,  said  notice  must  contain  letters  or  initials  of  the  car, 
number  of  the  car,  net  weight  and  the  amount  of  the  freight 
charges  due  on  the  same.  Storage  and  demurrage  charges 
may  be  assessed  if  the  goods  are  not  removed  in  conform- 
ity with  the  following  rules  and  regulations.  No  storage 
or  demurrage  charges,  however,  shall  in  any  case  be  al- 
lowed, unless  legal  notice  of  the  arrival  of  the  goods  has 
been  given  to  the  owner  or  consignee  thereof  by  the  rail- 
road company. 

RULE  II. 
Definition  of  Legal  Notice. 

Legal  notice  referred  to  in  these  rules  may  be  either 
actual  or  constructive.  Where  the  consignee  is  personally 
served  with  notice  of  the  arrival  of  freight,  free  time  begins 
at  7  o'clock  a.  m.  on  the  day  after  such  notice  has  been 
given. 

RULE  IV. 
.Demurrage  on  Loaded  Cars,  How  Assessable. 

Loaded  cars,  which  by  consent  and  agreement  between 
the  railroad  and  consignees,  that  are  to  be  unloaded  by 


231 

consignees,  such  as  bulk  meat,  bulk  grain,  hay,  cotton  seed, 
lumber,  lime,  coal,  coke,  sand,  brick,  stone  and  wood,  and 
all  cars  taking  track  delivery,  which  are  not  unloaded  from 
cars  containing  same  within  forty-eight  hours  (not  includ- 
ing Sundays  or  legal  holidays)  computed  from  7  a.  m.  from 
the  day  following  the  day  legal  notice  is  given  of  its  arrival 
and  the  car  or  cars  are  placed  accessible  for  unloading, 
may  be  subject  thereafter  to  a  charge  of  demurrage  of  one 
dollar  per  car  for  each  day  or  fraction  of  a  day  that  said 
car  or  cars  remain  loaded  in  the  possession  of  the  railroad 
company;  it  being  understood  that  said  car  or  cars  are  to 
be  placed  and  remain  accessible  to  the  consignee  for  the 
purpose  of  unloading  during  the  period  in  which  held  free 
of  demurrage,  and  when  the  period  of  such  demurrage 
charges  commences  they  are  to  be  placed  accessible  to  the 
consignee  for  unloading  purposes  on  demand  of  the  con- 
signee; provided,  however,  that  if  the  railroad  company 
shall  remove  such  car  or  cars  after  being  so  placed,  or  in 
any  way  obstruct  the  unloading  of  the  same,  the  consignee 
shall  not  be  chargeable  with  the  delay  caused  thereby;  pro- 
vided further,  that  when  consignees  shall  receive  four  or 
more  cars  during  any  one  day  loaded  with  lumber,  laths, 
shingles,  wood,  coal,  lime,  ore,  sand,  or  bricks,  and  all  cars 
taking  track  delivery,  the  said  cars  in  excess  of  three  shall 
not  be  liable  to  demurrage  by  any  railroad  company  until 
after  the  expiration  of  seventy-two  (72)  hours. 

Plaintiff  was  engaged  in  the  wholesale  feed  and  grain 
business  in  the  city  of  Meridian;  he  handled  large  numbers 
of  cars  of  hulls,  feed  stuff,  grain  and  other  commodities  re- 
quiring track  delivery;  some  of  these  cars  were  unloaded 
at  Meridian,  some  re-billed  to  other  points.  For  conveni- 
ence in  unloading  and  handling  freight,  George  had  leased 
a  portion  of  a  warehouse,  which  was  located  on  a  spur 
track  known  as  the  "compress  track,"  the  larger  part  of 
which  was  used  by  the  Cotton  Compress  Company  and 
other  concerns,  and  as  their  warehouses  were  situated  fur- 
ther up  the  spur  track  all  of  the  cars  used  by  them  had  to 
pass  over  that  portion  of  that  track  to  the  use  of  which 
George  was  entitled,  thus  necessitating  the  re-switching 
and  replacing  of  his  cars*  but  the  lease  to  George  was 
made  with  full  knowledge  on  his  part  of  this  condition  of 
affairs.  George's  warehouse  only  had  trackage  for  four 
cars.  It  was  the  usual  course  of  dealing  between  George 
and  the  railroad  company  that  the  cars  were  to  be  set  into 


232 

his  side  track  on  arrival,  without  special  demand,  and  the 
representatives  of  the  Alabama  Car  Service  Association 
would  check  the  cars  on  the  track  each  day  to  see  that 
there  was  no  unnecessary  delay  in  the  switching  and  plac- 
ing of  the  cars.  The  New  Orleans  &  Northeastern  Rail- 
road Company  had  also  an  employe  who  was  charged  with 
the  duty  of  checking  all  cars  on  the  track,  and  this  double 
checking  was  recorded  in  books  kept  for  that  purpose  and 
the  results  compared  to  guard  against  errors. 

On  Saturday,  Dec.  7th,  1901,  a  train  of  12  cars  loaded 
with  cotton  seed  hulls,  loose  in  bulk,  reached  Meridian, 
consigned  to  A.  H.  George  &  Co.  On  arrival,  this  train 
was  placed  on  the  "storage  track,"  appellant  contending 
that  it  was  necessary  on  account  of  the  crowded  condition 
of  the  "compress  track."  On  Monday,  9th,  the  compress 
track  being  still  crowded  with  cars,  the  train  was  switched 
to  the  "waterworks  track."  It  was  shown  that  at  this  date 
the  railroad  business  at  Meridian  was  extremely  large; 
every  track  was  in  constant  use;  every  car  needed  for  the 
transportation  of  cotton  and  other  freight.  On  the  same 
day  notice  of  the  arrival  of  this  freight  was  sent  to  George, 
but  he  declined  to  receive  the  freight  bill,  claiming  an 
overcharge.  George  denied  that  the  freight  bills  were  ten- 
dered to  him,  but  he  paid  the  freight  charges  on  the  12  cars 
of  hulls  on  the  13th  inst.,  and  either  that  day  or  a  few  days 
thereafter  had  the  overcharge  corrected.  George  knew  of 
the  rules  of  the  Alabama  Car  Service  Association ;  was  fa- 
miliar with  the  provisions  regarding  demurrage;  had  paid 
some  demurrage  and  had  refused  to  pay  some,  and  at  this 
date  had  a  dispute  or  litigation  pending  about  another  mat- 
ter of  demurrage. 

None  of  the  cars  composing  this  train  were  placed  in 
front  of  the  warehouse  of  George ;  the  Car  Service  Associa- 
tion's representative  and  the  railroad  company's  car  check- 
er both  testified  that  at  no  part  of  the  "free  time"  after 
the  arrival  of  this  train  did  George  have  less  than  four  cars 
on  his  side  track,  and  an  inspection  of  their  original  books 
corroborates  this.  George  wa^s  notified  during  the  free 
time  that  demurrage  would  accrue,  and  shortly  after  the 
"free  time"  expired  he  was  again  advised  of  this  claim  and 
then  and  there  denied  his  liability,  denied  the  right  of  the 
railroad  company  to  claim  demurrage  and  refused  to  pay. 


233 

The  manager  of  the  Car  Service  Association  instructed 
the  railroad  company  not  to  deliver  the  cars  until  the  de- 
murrage was  paid. 

So  matters  stood  until  about  the  1st  of  February,  1902, 
when  the  railroad  company  released  six  of  the  cars  to 
George  and  notified  him  of  its  intention  to  sell  the  contents 
of  the  remaining  six  for  the  demurrage  on  the  12.  There- 
upon this  suit  was  filed  for  the  contents  of  five,  the  hulls 
in  the  other  proving  worthless.  At  the  conclusion  of  the 
testimony  the  court  refused  a  peremptory  instruction  for 
the  defendant  and  submitted  the  case  to  the  jury  under  in- 
structions for  both  sides.  The  jury  found  for  plaintiff  and 
the  Northeastern  Railroad,  Company  appeals. 

OPINION  OF  THE  COURT. 

TRULY,  J. — This  suit  involves  the  determination  of 
the  following  questions : 

First — Are  the  rules  for  the  collection  of  demurrage 
valid;  and 

Second — If  so,  how  are  they  to  be  enforced? 

Car  service  associations  are  formed  by  mutual  agree- 
ment among  the  railroad  companies  operating  in  a  stated 
territory;  they  owe  their  existence  to  the  growth  of  the 
business  interests  of  the  country,  the  enormous  increase  in 
the  bulk  of  through  freight  handled  daily  and  the  conse- 
quent extension  of  the  many  railroad  systems  handling  the 
same.  With  every  increase  in  the  volume  of  the  freight 
brought  into  a  section  from  distant  markets,  hauled  with- 
out unloading  over  the  tracks  of  many  connecting  systems 
of  the  same  gauge,  it  became  more  difficult  for  each  car- 
rier to  keep  track  of  its  own  cars.  As  the  cars  of  each  sys- 
tem were  handled  indiscriminately  by  every  other  system, 
they  soon  drifted  to  every  quarter  as  the  current  of  traffic 
ebbed  or  flowed  and  their  whereabouts  were  often  unknown 
to  the  carrier  owning  them.  To  correct  this  evil,  car  ser- 
vice associations  were  formed,  the  primary  object  of  which 
was  to  prevent  loss  by  keeping  a  daily  record  of  every  car 
handled  by  each  carrier,  so  that  each  system  might  receive 
compensation  for  the  use  of  its  rolling  stock  and  no  unfair 
advantage  taken  by  one  system  over  another;  and  further 


234 

to  prevent  cars  standing  idle  at  one  place  when  needed  to 
meet  the  traffic  and  demands  of  another  section  of  the 
country.  These  organizations  had  a  beneficial  effect  in 
preventing  congestion  of  empty  and  idle  cars  at  one  point 
while  a  car  famine  prevailed  at  another.  But  it  soon  be- 
came apparent  that  the  remedy  was  not  complete ;  carriers 
earned  money  by  the  moving  of  freight ;  the  idle  car  pro- 
duces no  revenue  and  the  car  service  associations  found 
that  while  it  was  possible  under  its  then  existing  rules  to 
keep  the  unloaded  cars  moving  from  place  to  place  as  ne- 
cessity might  require,  they  were  without  power  to  have  the 
freight  promptly  unloaded  by  the  consignee  thus  securing 
the  car  for  further  service. 

The  merchant  who  bought  goods  for  sale  from  his 
shelves  or  through  his  warehouse  was  ordinarily  anxious 
to  receive  and  unload  his  freight,  but  the  broker  who 
wished  to  do  a  large  business  with  limited  or  no  warehouse 
facilities  found  it  cheaper  and  more  convenient  to  use  the 
cars  of  the  carrier  for  storage  purposes  and  thus  with  no 
expense  to  him  wait  a  favorable  fluctuation  of  price  when 
the  commodity  could  be  disposed  of  to  advantage  and  the 
car  unloaded  or  re-billed  to  another  place  without  unload- 
ing. To  meet  this  contingency  the  demurrage  rules  in 
question  were  formulated  and  promulgated. 

It  should  be  noted  that  the  purpose  of  car  service  as- 
sociations was  not  to  make  money ;  they  increase  the  reve- 
nue of  the  contracting  carriers  only  incidentally  in  that,  by 
keeping  every  car  in  active  service,  the  earning  capacity 
was  constantly  exerted  and  the  returns  therefrom  in- 
creased; but  the  prime  object  of  their  formation  was  to 
observe  and  promote  the  mutual  interests  of  the  carriers 
and  the  public  dealing  with  them,  by  improving  the  service 
of  the  traffic  department  and  insuring  the  prompt  handling 
and  speedy  delivery  of  freight  to  the  consignee. 

It  is  admitted  that  the  amount  charged  under  the  de- 
murrage rules  is  reasonable,  and  it  appears  to  us  that  the 
rules  in  themselves  are  fair  and  based  upon  the  funda- 
mental maxim  of  justice,  "the  greatest  good  to  the  great- 
est number."  The  carrier  of  freight  is  responsible  in  dam- 
ages if  it  unreasonably  delays  the  transportation  of  freight 
delivered  to  it  and  exact  justice  demand  equal  diligence 
of  the  consignee. 

When  freight  has  been  transported  to  its  destination 
and  the  consignee  legally  notified  of  its  arrival  it  then  be- 


235 

comes  the  duty  of  the  consignee  to  promptly  receive  the 
same,  so  that  the  car  may  again  be  placed  in  service.  These 
rules  work  no  hardship  to  the  consignee  who  displays 
proper  diligence  in  the  handling  of  his  freight  ample  time 
is  granted  him,  but  they  prevent  the  dilatory  dealers  who 
seek  to  save  storage  or  warehouse  charges  from  keeping 
the  track  blocked  with  idle  cars,  thereby  impeding  the  car- 
riers in  the  prompt  handling  of  freight  and  depriving  other 
dealers  of  the  use  of  necessary  cars  to  haul  their  freight  or 
transport  the  product  of  the  country  to  market. 

Certainly  no  reason  founded  in  justice,  can  be  given 
why  consignees  should  not  pay  for  any  unreasonable  or 
unnecessary  detention  of  cars.  Prompt  handling  of  freight 
by  both  carrier  and  consignee  is  for  the  best  interest  of 
both  and  of  the  commercial  world  at  large. 

The  question  was  never  before  in  this  court,  but  this 
view  is  in  full  accord  with  an  almost  unbroken  line  of  de- 
cisions in  other  states,  and  precedent  aside,  it  is  supported 
by  justice  and  right.  Norfolk  &  W.  R.  Co.  vs.  Adams,  90 
Va.,  393,  22  L.  R.  A.,  530;  Kentucky  Wagon  Mfg.  Co.  vs. 
O.  M.  Ry.  Co.,  98  Ky.  152,  36  L.  R.  A.,  850,  and  cases 
cited.  They  have  also  been  approved  by  the  railroad  com- 
missions of  various  states  who  are  charged  with  the  duty 
of  guarding  the  interest  of  the  public. 

It  is  well  settled  that  railroad  companies  may  make 
reasonable  rules  and  regulations,  not  to  limit  their  own 
duty  or  liability,  but  for  the  convenient  transaction  of  busi- 
ness between  themselves  and  the  shippers  of  freight  over 
their  lines. 

Having  reached  the  conclusion  that  the  rules  impos- 
ing reasonable  demurrage  charges  upon  dilatory  con- 
signees are  fair,  just  and  enforcible,  we  now  pass  to  a  con- 
sideration of  the  manner  of  their  enforcement. 

It  may  be  borne  in  mind  that  the  duty  of  the  railroad 
company  as  a  carrier  of  freight  terminates  under  the  de- 
cisions of  our  court  when,  the  freight  having  reached  its 
destination  in  good  order  the  consignee  is  legally  notified 
of  its  arrival,  after  that  time  the  railroad  holds  as  ware- 
houseman and  bailee  for  hire.  But  in  the  present  case 
whether  appellant  held  as  carrier  or  as  warehouseman  and 
special  bailee  it  was  in  either  of  these  capacities,  rightfully 
in  possession  and  had  the  right  to  retain  that  possession 
until  its  legitimate  charges  were  paid.  This  is  a  suit  in  re- 


plevin  in  which  right  of  possesson  is  the  only  question  of 
law  involved.  If  there  was  any  sum  due  appellant,  whether 
little  or  much,  the  verdict  should  have  been  that  it  retain 
possession. 

It  is  earnestly  insisted  that  the  railroad  company  has 
no  lien  on  the  freight  for  demurrage  charges  either  by  stat- 
ute or  at  common  law.  It  may  be  true  that  there  is  a  tech- 
nical distinction  between  the  lien  here  claimed  and  the 
common  law  lien,  though  the  difference  is  more  imaginary 
than  real;  but  it  is  undoubtedly  true  that  the  warehouse- 
man as  bailee  for  hire  "has  a  lien  for  his  reasonable  charges 
and  this  is  recognized  as  to  warehousemen  by  the  express 
terms  of  Section  2108,  Code  1892,  in  which  a  lien  is  given 
for  freight  and  storage  coupled  with  a  power  to  sell  in  a 
manner  therein  pointed  out.  If  a  carrier  has  a  lien  for 
storage  charges  if  the  freight  is  unloaded  into  a  warehouse 
upon  what  principle  can  it  be  denied  if  by  the  action  of 
the  consignee  the  cars  themselves  become  his  storage 
houses?  Particularly  when,  as  in  this  case,  the  consignee 
knows  in  advance  by  his  course  of  dealing  with  the  carrier 
that  the  charges  will  be  incurred  if  he  delays  in  receiving 
his  freight.  In  our  judgment,  by  necessary  implication  the 
Code  Chapter  on  freight  and  storage  carries  with  it  the 
necessary  lien  to  enforce  the  collection  of  all  reasonable 
charges  incident  to  the  handling  of  freight:  In  a  case  of 
this  character,  involving  the  dealings  of  a  carrier  and  pub- 
lic, the  courts  will  not  narrowly  restrict  the  meaning  of  a 
statute,  but  will  rather  "expand  the  principles"  of  law  and 
"fit  them  to  the  exigencies  of  the  occasion,"  as  was  aptly 
phrased  by  the  eminent  jurist,  Chief  Justice  Cooper,  in  dis- 
cussing a  similar  proposition  (66  Miss.,  555).  Knowing  the 
rules  governing  the  transaction,  the  voluntary  action  of 
the  consignee  gives  an  implied  assent  to  the  charge  and 
lien  which  those  rules  assert. 

By  the  sole  action  of  the  consignee  the  carrier  is  forced 
to  retain  the  possession  of  the  freight;  by  operation  of  law, 
it  is  required  to  keep,  store  and  care  for  the  property  of  an- 
other ;  it  is  under  the  law  entitled  to  compensation  for  its 
services  in  this  connection  and  the  law  gives  it  a  remedy 
to  enforce  its  right.  In  the  case  of  Wolf  vs.  Crawford,  54 
Miss.,  514,  our  court,  in  discussing  the  right  of  a  carrier 
as  a  bailee,  said :  "But  the  right  of  the  general  owner  (of 
the  freight)  to  be  restored  to  the  possession  is  dependent 
on  the  payment  or  tender  of  the  freight  and  other  charges 


237 

on  the  goods  of  the  carrier.  For  these  he  had  a  lien  which 
would  be  lost  if  he  had  parted  with  the  possession;  and  he 
cannot  be  compelled  to  make  delivery  until  they  are  dis- 
charged. The  general  owner  cannot  dispossess  the  car- 
rier of  the  goods  without  payment  or  tender  of  his  legal 
demands  upon  them." 

Again : 

"But  a  bailee  until  the  condition  of  the  bailment  have 
been  accomplished  has  a  property  in  the  chattels  and  the 
possession  which  is  exclusive,  both  as  to  the  general  owner 
and  strangers  his  right  and  possession  extend  to  the  entire 
property;  nor  can  the  bailor,  or  any  one  claiming  through 
him,  interrupt  and  defeat  his  rights  until  a  satisfaction  of 
his  claim  or  an  offer  to  do  so.  The  common  carrier,  ware- 
houseman and  all  the  class  of  bailees  who  have  a  beneficial 
interest  have  a  right  of  possession  and  a  lien  in  the  thing. 
These  rights  are  inviolable  until  the  acts  and  purposes  for 
which  they  were  created  are  performed." 

In  Miller  vs.  Ga.  R.  R.  Co.,  supra,  after  stating  the 
general  rule  that  a  carrier  had  a  right  to  collect  reasonable 
storage,  the  opinion  proceeded  : 

"We  do  not  think  it  material  as  affecting  the  right  to 
make  a  charge  of  this  character  that  the  goods  remained 
in  the  car  instead  of  being  put  into  a  warehouse."  (28  Am. 
Eng.  Ency.  L.,  663 ;  Dixon  vs.  Central  of  G.  R.  R.,  35  S.  E. 
R.,  369;  Barker  vs.  Brown,  138  Mass.,  240). 

There  is  no  force  in  the  argument  which  conceded  the 
right  of  the  carrier  to  make  demurrage  charges  but  con- 
tends that  the  goods  be  delivered  and  then  the  carrier  sue 
for  the  amount.  This  course  would  give  the  dishonest  and 
insolvent  an  unfair  advantage  and  would  breed  a  multiplic- 
ity of  suits. 

It  is  contended  for  appellee  that  whatever  may  be  the 
general  rule  in  the  instant  case,  the  appellant  should  be  de- 
feated of  its  recovery  because  it  failed  to  bring  itself 
within  the  rules  allowing  demurrage  in  this.  It  failed  to 
notify  the  consignee  in  the  manner  pointed  out,  and  it  failed 
to  tender  delivery  of  the  freight  as  required  by  the  rules  of 
the  car  service  association.  As  to  the  first  contention,  it 
is  enough  to  say  that  the  object  of  the  rule  was  reached 
and  the  law  fully  complied  with  when  George  was  advised 


238 

of  the  arrival  of  the  twelve  cars,  though,  if  the  testimony 
of  all,  as  supported  by  the  entries  in  his  notice  book,  be 
true,  the  rule  was  literally  complied  with. 

As  to  the  second  contention,  there  is  conflict  as  to  the 
fact.  It  is  true  that  the  cars  were  not  in  fact  placed  in 
front  of  George's  warehouse,  but  the  testimony  does  not 
clearly  show  that  it  was  the  fault  of  the  appellant.  On  the 
contrary,  the  testimony  of  Fewell,  the  representative  of  the 
Car  Service  Association;  of  Lowery,  car  checker  of  ap- 
pellant company,  supported  by  the  contemporaneous  en- 
tries in  their  record  books,  if  believed  by  the  jury,  show 
conclusively  that  during  all  of  the  "free  time"  to  which 
appellee  was  entitled  under  the  rules,  placing  in  front  of 
George's  warehouse  was  prevented  by  an  accumulation  of 
cars  consigned  to  George  himself.  This  is  contradicted  by 
Shepherd,  car  checker  for  appellee,  while  appellee  himself 
testified  that  "there  was  no  place  to  deliver  them;  they  had 
our  track  full  of  cotton." 

With  the  sharp  conflict  of  testimony  on  this  point, 
Clause  "B,"  of  Rule  III,  must  be  considered.  "The  deliv- 
ery of  cars  consigned  to  or  ordered  to  sidings  used  exclu- 
sively by  certain  firms  or  individuals  located  on  such  sidings, 
shall  be  considered  to  have  been  effected  either  when  such 
cars  have  been  placed  on  the  sidings  designated ;  or,  if  such 
sidings  be  full,  when  the  road  offering  the  cars  would  have 
made  delivery  had  such  sidings  permitted.'  It  was  claimed 
by  appellant  that  the  cars  would  have  been  placed  on  sid- 
ing on  arrival  had  the  siding  permitted;  there  is  much 
proof  that  the  siding  was  full.  Whether  the  siding  was 
filled  with  cars  consigned  to  George  or  to  the  Cotton 
Compress,  in  either  event  appellant  was  excused  from  de- 
livering upon  the  siding.  If  George  had  his  full  quota  of 
cars,  then  he  had  no  ground  of  complaint.  If  the  siding 
was  filled  with  cars  for  Compress,  it  had  equal  right  to  use 
of  siding  and  appellant  is  not  liable. 

The  court  correctly  instructed  the  jury  on  the  point 
by  fifth  instruction  for  defendant,  but  also  gave  the  second 
instruction  for  plaintiff,  and  in  the  light  of  our  conclusions, 
this  was  error.  By  this  instruction  the  jury  was  told  that 
it  devolved  upon  defendant  to  prove  by  a  preponderance 
of  the  evidence  that  it  notified  plaintiff  of  the  arrival  of  the 
cars,  and  placed  them  on  the  side  track  adjacent  to  plain- 


239 

tiff's  warehouse,  or  "to  show  circumstances  of  excuse  or 
justification  therefor." 

This  was  misleading.  By  it  the  determination  of  cer- 
tain questions  was  submitted  to  the  jury,  whereas,  in  fact, 
the  questions  were  not  in  dispute.  The  jury  did  not  have 
to  pass  on  the  question  of  notice;  George's  own  testimony 
leaves  no  doubt  of  his  knowledge  of  the  arrival  of  the  cars. 
In  the  light  of  the  instructions  for  the  defendant  the  jury 
were  left  in  doubt  as  to  what  was  meant  by  "circum- 
stances of  excuse  or  justification  therefor."  to  Sum  up 
the  sole  question  of  disputed  fact  involved  in  this  record,  is  : 
was  the  siding  so  filled  with  cars  consigned  to  George,  or  to 
others  entitled  to  use  the  side  track  as  to  prevent  the  rail- 
road company  placing  the  cars  until  after  the  expiration  of 
the  "free  time."  If  so,  the  railroad  was  entitled  to  the  ver- 
dict; if  not,  George  should  recover.  Upon  this  sole  ques- 
tion is  there  sufficient  conflict  to  justify  the  submission  of 
the  cause  to  the  jury  for  determination. 

The  ingenious  but  fallacious  argument  is  made  that 
the  railroad  company  should  not  be  permitted  to  claim  the 
fact,  if  fact  it  be,  that  the  siding  was  full  of  cars  consigned 
to  the  Compress  as  "an  excuse  or  justification,"  in  the  lan- 
guage of  the  second  instruction  for  plaintiff,  for  the  failure 
to  place  the  cars  in  question,  because  of  the  unjust  favorit- 
ism shown  the  Compress  Company  by  the  railroad  com- 
pany in  not  charging  demurrage  on  cars  loaded  with  cotton. 
This  is  not  within  the  condemnation  of  the  rules.  Clause 
"C,"  Rule  9,  prohibits  discrimination  between  persons,  and 
says  that  if  the  car  service  be  collected  from  one  person  it 
must  be  collected  of  all  who  are  liable.  This  is  to  prevent 
discrimination  between  persons  handling  cars  loaded  with 
the  same  class  of  freight.  So  that  if  car  service  is  collected 
from  one  dealer  handling  hulls,  or  flour,  or  grain,  or  other 
class  of  freight,  it  must  be  collected  from  all  dealers  hand- 
ling the  same  class  of  freights.  But  in  the  instant  case, 
car  service  was  collected  from  no  car  loaded  with  cotton  or 
coal,  no  matter  by  whom  handled,  anywhere  within  the 
territory  covered  by  the  Alabama  Car  Service  Association. 
It  is  to  be  seriously  doubted  whether,  under  the  undisputed 
testimony  of  the  assistant  manager  of  the  Alabama  Car 
Service  Association,  the  carriers  have  the  authority  to  im- 
pose car  service  on  the  cars  loaded  with  cotton  or  coal. 
We  know  of  no  reason  why  we  should  condemn  as  unlaw- 


240 

ful  or  unjust  the  exemption  of  cars  loaded  with  cotton  or 
coal  from  car  service  charges,  while  many  reasons  present 
themselves  to  commend  the  equity  of  the  rule.  In  con- 
struing the  language  of  said  second  instruction  the  jury 
might  well  have  inferred,  in  considering  all  the  instructions 
together,  that  even  though  the  siding  was  filled  with  cars 
for  George  or  the  Compress  this  was  no  "excuse  or  justifi- 
cation" for  the  appellant  because  no  car  service  was  col- 
lected of  the  Compress.  And  this  position  is  not  maintain- 
able. 

For  the  error  in  giving  the  second  instruction  for 
plaintiff  above  referred  to  which  is  in  itself  erroneous  and 
misleading  and  is  in  conflict  with  the  other  instruction  for 
both  plaintiff  and  defendant,  the  case  is  reversed  and  re- 
manded and  a  new  trial  awarded. 

As  a  new  trial  must  be  awarded  for  the  error  indicated, 
one  further  question  presents  itself  for  decision :  Did  the 
railroad  company  forfeit  its  claim  for  demurrage  upon  the 
six  cars  released  by  releasing  the  six  cars  and  holding  the 
remaining  six  for  the  charges  upon  the  entire  twelve.  The 
twelve  cars  in  question  constituted  one  shipment  belong- 
ing to  one  owner  received  at  the  same  time;  further,  a  dif- 
ferent amount  of  demurrage  was  due  (if  any  was  due)  upon 
four  cars  from  what  was  due  upon  the  remaining  eight 
there  was  no  way  to  distinguish  the  four  cars  from  the 
eight  except  by  arbitrary  selection.  The  cars  were  all  load- 
ed with  the  same  commodity  loose  in  bulk. 

In  28  Am.  and  Eng.  Ency.  L.  the  rule  is  stated :  "The 
lien  (for  storage  charges)  is  a  right  to  retain  possession  of 
the  goods  until  the  satisfaction  of  the  charges  imposed 
upon  them;  it  is  specific  upon  the  goods  stored  for  the  par- 
ticular charges  for  such  storage,  although  the  entire  lien 
extends  to  every  parcel  of  the  goods  stored  at  any  one 
time." 

In  Schmidt  vs.  Blood,  24  Am.  DC.,  143,  it  is  said:  "A 
warehouseman  has  a  lien  upon  the  balance  left  in  his  hands 
of  an  entire  lot  of  merchandise  entrusted  to  him  at  the 
same  time,  after  delivery  of  part  for  the  storage  of  the 
whole.  And  the  same  conclusion  is  reached  in  Steinman 
vs.  Wilkins,  42  Am.  Dec.,  254,  a  thoroughly  well  reasoned 
case  and  fully  supported  by  citation  of  numerous  authori- 
ties. 


241 

In  Penn.  Steel  Co.  vs.  Ga.  R.  R.  &  B.  Co.,  a  recent 
case  reported  in  94  Ga.,  636,  it  was  decided  that  a  railroad 
company  had  the  right  to  retain  from  each  consignment 
one  or  more  cars  to  secure  itself  for  the  freight  and  de- 
murrage it  claimed  on  such  consignment.  And  we  think 
this  the  true  and  just  rule,  supported  by  reason  and  the 
more  modern  decisions. 

We  are  unable  to  see  why  it  should  be  required  of  the 
carrier  that  it  retain  twelve  cars  loaded  with  a  commodity, 
belonging  to  the  same  owner,  when  the  contents  of  a  fewer 
number  of  the  cars  is  sufficient  to  liquidate  its  charges  on 
all,  especially  in  a  case  where,  as  in  the  instant  case,  a  dis- 
pute has  arisen  as  to  the  .validity  of  the  charges  claimed, 
and  the  consignee  is  willing  to  receive  the  contents  of  the 
other  cars.  As  stated,  the  conclusion  of  the  Supreme 
Court  of  Georgia  occurs  to  us  as  being  the  just,  sensible 
and  convenient  rule.  It  avoids  the  sale  of  a  large  amount 
of  freight  for  the  collection  of  a  trifling  sum;  it  saves  the 
consignee  the  possibility  of  a  loss  by  the  sacrifice  of  his 
property  at  a  forced  sale,  and  it  gives  the  carrier  the  speedy 
use  of  its  cars  for  the  moving  of  other  freight.  We  note 
nothing  in  the  rules  under  consideration  forbidding  such 
action,  and  it  commends  itself  to  us  as  being  the  proper 
course. 

If  the  question  of  fact  be  decided  in  favor  of  appellant 
that  it  is  entitled  to  demurrage  in  this  case,  the  six  cars  re- 
tained by  it  are  liable  to  the  charges  for  the  entire  twelve 
constituting  the  shipment. 

For  the  reasons  hereinbefore  stated,  the  case  is  re- 
versed and  remanded. 


I,  George  C.  Myers,  Clerk  of  the  Supreme  Court  of 
Mississippi,  do  hereby  certify  the  foregoing  to  be  a  true 
copy  of  the  opinion  of  said  court,  delivered  in  the  cause 
hereinbefore  stated,  as  the  same  appears  of  record  in  my 
office. 

In  testimony  whereof  I  hereunto  set  my  hand  and  seal 
of  said  court  at  office  at  Jackson  this  19th  day  of  Novem- 
ber, 1903. 

GEORGE  C.  MYERS,  Clerk. 


242 


DISTRICT  COURT,  BLACK  HAWK  CO.,  IOWA. 
JANUARY  TERM,  A.  D.,  1904. 

UNREPORTED. 


Iowa  Statute  under  which  111.  Central,  C.  G.  W.  and  C.  R. 

I.  &  P.  were  Indicted  for  Conspiracy  in  Agreeing  to 

Car  Service  Rules,  Declared  Unconstitutional. 


FACTS. 

August  1,  1902,  car  service  rules  became  effective 
throughout  a  large  portion  of  Iowa.  Townsend  &  Merrill, 
a  lumber  firm,  doing  business  at  a  number  of  points,  took 
counsel  of  state  authorities,  and  refused  payment  of  the 
first  charges  accruing;  cars  were,  therefore,  held  for  car 
service  due,  which  was  later  paid  under  protest.  Indict- 
ments, based  on  above  action,  were  then  secured  against 
the  Illinois  Central  Railroad  Company,  Chicago,  Great 
Western  Railway  Company,  and  Chicago,  Rock  Island  and 
Pacific  Railway  Co.,  through  the  grand  jury  at  Waterloo, 
Iowa. 


STATUTE  CLAIMED  TO  HAVE  BEEN  VIOLATED. 

Iowa  Code,  Sec.  5060,  Pools  and  Trusts.  Any  cor- 
poration organized  under  the  laws  of  this  or  any  other  state 
or  country,  for  transacting  or  conducting  any  kind  of  busi- 
ness in  this  state,  or  any  partnership,  association  or  indi- 
vidual, creating,  entering  into  or  becoming  a  member  of  or 
a  party  to  any  pool,  trust,  agreement,  contract,  combina- 
tion, confederation,  or  understanding  with  any  other  cor- 
poration, partnership,  association,  or  individual,  to  regulate 
or  fix  the  price  of  any  article  of  merchandise  or  commodity, 
or  to  fix  or  limit  the  amount  Or  quantity  of  any  article, 
commodity  or  merchandise  to  be  manufactured,  mined, 
produced  or  sold  in  this  state,  shall  be  guilty  of  a  con- 
spiracy. 


243 

Sec.  5062,  Penalty.  Any  corporation,  company,  firm 
or  association  violating  any  of  the  provisions  of  the  two 
preceding  sections  shall  be  fined  not  less  than  one  per  cent, 
of  its  capital  or  amount  invested  in  such  corporation,  com- 
pany, firm  or  association,  nor  more  than  twenty  per  cent, 
of  the  same ;  and  any  president,  manager,  director,  officer, 
agent  or  receiver  of  any  corporation,  company,  firm  or  as- 
sociation, or  any  member  of  any  corporation,  company, 
firm  or  association,  or  individual,  found  guilty  of  a  viola- 
tion thereof,  shall  be  fined  not  less  than  five  hundred  nor 
more  than  five  thousand  dollars,  or  be  imprisoned  in  the 
county  jail  not  to  exceed  one  year,  or  both. 

Sec.  5065,  Forfeiture  of  Charter.  Any  corporation 
created  or  organized  by  or  under  the  law  of  this  state, 
which  shall  violate  any  provision  of  the  five  preceding  sec- 
tions, shall  thereby  forfeit  its  corporate  right  and  franchise, 
as  provided  in  the  next  section. 

EXTRACTS  FROM  DECISION. 
(Hon.  Franklin  C.  Platt,  District  Judge.) 

'The  indictment  charges  that  the  defendants  did  con- 
spire together  'to  fix  the  time  allowed  shippers  for  unload- 
ing any  commodity  from  a  car  upon  the  railway  of  any 
member  of  said  unlawful  combination  without  charge,  and 
to  fix  the  charge  for  the  shipper  detaining  said  car  for  a 
longer  period  than  forty-eight  hours/  The  defendants 
demur  generally  and  specifically  to  the  indictment.  *  *  * 
The  contention  is  that  the  statute  is  unconstitutional  in 
that  it  is  in  contravention  of  the  Fourteenth  Amendment 
to  the  Constitution  of  the  United  States,  which  is  as  fol- 
lows : 

ARTICLE  XIV. 

Section  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States,  and  of  the  state  wherein  they 
reside.  No  state  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immupities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws. 


244 

No  question  is  raised  that  the  legislature  did  not  have 
the  power  to  enact  Section  5060  of  the  Code,  but  it  is  urged 
that  the  penalty  provided  by  Section  5062  deprives  the  de- 
fendants of  the  equal  protection  of  the  law.  *  *  *  The 
minimum  fine  as  to  the  defendants  would  be,  say  $600,000, 
$680,000,  and  $1,000,000  respectively,  while  the  maxi- 
mum penalty  would  be  $12,000,000,  $13,600,000,  and  $20,- 
000,000  respectively.  But  the  offense  of  such  defendant  is 
the  same,  yet  one  might  be  required  to  pay  as  a  penalty 
$6,400,000  more  than  another. 

This  inequality  in  the  protection  of  the  law  is  slight, 
however,  compared  to  that  when  the  penalty  attaching  to 
a  violation  of  the  statute  by  an  individual  or  by  an  agent, 
officer  of  a  corporation,  or  member  of  any  firm  or  associa- 
tion, is  considered.  As  to  such  persons  the  minimum  fine 
is  $500  and  the  maximum  penalty  is  $5,000.  Thus,  while 
a  corporation  is  guaranteed  the  equal  protection  of  the 
law,  one  of  these  defendants  might  be  fined  $19,995,000 
'more  than  could  be  imposed  upon  an  individual,  or  upon 
an  officer  or  agent  of  any  corporation,  company,  firm  or 
association,  for  the  same  offense.  Such  statutes  have  been 
uniformly  held  to  be  unconstitutional. 

In  the  case  of  Gulf,  Colorado  &  Santa  Fe  Railway  Co. 
vs.  Ellis,  165  U.  S.  150  (quotes) :  in  Leeper  vs.  Texas,  139 
U.  S.  462  (quotes) ;  in  Cotting  vs.  Kansas  City  Stock  Yards 
Co.,  183  U.  S.  79  (quotes);  in  Connelly  vs.  Union  Sewer 
Pipe  Co.,  184  U.  S.  560  (quotes);  in  Babier  vs.  Connelly, 
113  U.  S.  27  (quotes) ;  in  Cooley's  Const.  Limitations,  5th 
Ed.,  (quotes). 

Another  serious  objection  of  the  act  is  the  further  pen- 
alty provided  by  Section  5065.  Here  is  a  clear  violation  of 
the  constitutional  right,  in  that  a  very  heavy  additional 
penalty  is  imposed  upon  domestic  corporations,  while  for- 
eign corporations  may  escape  by  paying  the  fine  imposed 
under  Section  5062.  If  the  act  is  constitutional  the  cor- 
porate right  and  franchise  of  the  defendant  Chicago,  Rock 
Island  and  Pacific  Railway  Co.  must  upon  conviction  be 
forfeited,  while  the  defendant,  Illinois  Central  Railroad 
Co.,  being  an  Illinois  corporation,  would  retain  its  corpor- 
ate franchise  and  the  right  to  transact  business  in  this  state. 

The  8th  amendment  to  the  Constitution  of  the  United 
States  and  the  Constitution  of  Iowa  provide  that  excessive 
fines  shall  not  be  imposed.  If  the  defendants  are  guilty  as 


245 

charged  in  the  indictment  they  have  committed  no  heinous 
crime,  yet  the  minimum  aggregate  fine  would  be  $2,280,000 
of  which  the  county  attorney  would  be  entitled  to  the  sum 
of  $456,000.  In  addition  to  this  fine  the  corporate  fran- 
chise of  one  of  the  defendants  would  necessarily  be  for- 
feited. 

I  do  not  think  the  indictment  charges  the  commission 
of  the  offense  defined  by  the  act  under  which  it  was  found. 
The  statute  prohibits  any  combination  to  regulate  or  fix 
the  price  of  any  article  of  merchandise  or  commodity.  If 
any  commodity  was  affected  by  the  alleged  combination,  it 
was  no  doubt,  the  use  of  the  car  by  the  shipper.  But  the 
indictment  does  not  charge  that  there  was  any  combination 
or  understanding  between  the  defendants  to  fix  the  charge 
for  such  use.  It  charges  that  the  defendants  combined  to- 
gether 'to  fix  the  charge  for  the  shipper  detaining  said  car 
for  a  longer  period  than  forty-eight  hours.'  The  detention 
of  a  freight  car  is  not  a  commodity. 

.    The  demurrer  is  sustained. 
The  state  excepts." 


UNITED  STATES  CIRCUIT  COURT. 


CHICAGO  COAL  SHIPPERS'  ASSOCIATION 

VS. 
CHICAGO  CAR  SERVICE  ASSOCIATION. 


Hon.  S.  H.  Bethea,  United  States  District  Attorney,  Chi- 
cago, Illinois. 

Sir:  In  order  that  you  may  have  complete  informa- 
tion as  to  the  organization  and  purposes  of  the  Chicago 
Car  Service  Association,  when  you  take  up  for  considera- 
tion the  bill  the  Commissioner  of  the  Coal  Shippers'  Asso- 
ciation of  Chicago  has  asked  the  government  of  the  United 
States  to  file  against  the  Chicago  Car  Service  Association, 
the  following  statement  is  respectfully  submitted : 


246 

Prior  to  the  organization  of  the  Chicago  Car  Service 
Association,  November  1,  1888,  an  intolerable  condition  of 
misuse  of  the  freight  car  equipment  of  railways  by  con- 
signees had  for  a  long  time  prevailed,  and  notwithstand- 
ing the  efforts  made  to  stop  the  abuses,  no  influence  which 
the  roads  individually  could  bring  to  bear  was  of  any  effect 
in  improving  the  situation. 

The  person  who,  with  a  desk  for  an  office,  could  solicit 
a  consignment  of  freight,  would,  upon  its  arrival,  take  a 
sample  and  go  about  the  city  to  effect  a  sale,  and,  failing  to 
find  a  customer  to  accept  his  terms,  would  hold  the  car 
upon  the  tracks  of  the  railway  company  without  expense 
to  himself  until  it  suited  his  purpose  to  remove  the  freight. 
When  the  patience  of  the  first  railway  company  was,  after 
many  days,  and  sometimes  weeks,  finally  exhausted,  he 
would  upon  payment  of  a  small  switching  charge,  order  the 
car  switched  to  the  tracks  of  another  railway  company, 
there  to  repeat  the  operation,  and  so  on  from  one  railway 
company  to  another,  until  not  infrequently  months  would 
be  consumed  before  the  car  would  be  unloaded.  This  pro- 
ceeding, carried  on  simultaneously  by  many  individuals, 
each  handling  numbers  of  cars,  congested  the  railway  ter- 
minals and  tied  up  a  vast  amount  of  equipment. 

Freight  was  allowed  in  many  instances  to  remain  in 
cars  on  sidings  until  the  same  deteriorated  and  depreciated 
in  value  so  that  the  railway  companies  could  not  by  sale 
realize  sufficient  to  satisfy  freight  charges.  Cars  of  coal  in 
some  instances  were  held  under  load  until  vegetation  a  foot 
or  more  in  height  grew  thereon,  and  in  other  cases  spon- 
taneous combustion  occurred,  damaging  or  destroying  the 
car,  and  threatening  the  property  in  the  vicinity  of  the 
same. 

Again,  many  manufacturing  establishments  would  or- 
der large  supplies  of  material  in  order  that  they  might  take 
advantage  of  a  favorable  price  or  other  special  condition  of 
the  market.  When,  owing  to  their  lack  of  storage  facili- 
ties, they  were  unable  to  unload  the  freight  upon  arrival, 
they  would  hold  the  cars  indefinitely  to  suit  their  conveni- 
ence. 

Consignees  with  cars  on  team  tracks  that  were  favor- 
ably located,  by  unnecessarily  delaying  the  unloading  of 
the  same  compelled  other  consignees  to  wait  their  turn, 
or  to  unload  their  cars  on  less  favorably  situated  tracks. 


247 

In  general  a  feeling  of  indifference  prevailed  on  the 
part  of  consignees,  and  no  considerations  other  than  con- 
venience or  economy  influenced  them  in  releasing  the 
equipment  of  the  railway  companies. 

This  state  of  affairs  existing  at  their  terminals  serious- 
ly crippled  the  capacity  of  the  railway  companies  to  ade- 
quately serve  the  public. 

The  situation  at  Chicago  was  not  different  from  the 
condition  that  existed  at  other  terminals  throughout  the 
country.  Twenty-one  railway  companies,  with  lines 
stretching  out  and  connecting  with  the  entire  railway  sys- 
tem of  the  United  States,  had  their  terminals  in  the  City 
of  Chicago.  Freight  coming  in  over  these  twenty-one 
lines  and  terminating  at  Chicago  could  be  divided  into  two 
classifications : 

(1)  Freight  originating  beyond  or  on  a  Chicago  line, 
and  delivered  on  that  line  at  Chicago. 

(2)  Freight  originating  beyond  or  on  a  Chicago  line, 
and  delivered  at  Chicago  through  one  or  more  connecting 
lines. 

From  10  to  50  per  cent,  of  the  freight  consigned  to 
Chicago  was  delivered  upon  the  terminals  of  lines  that  did 
not  originate  the  business  or  bring  it  into  Chicago.  To 
illustrate:  A  car  owned  by  the  Chicago  &  Northwestern 
Railway  Company,  loaded  with  freight  originating  either 
beyond  or  upon  its  own  lines,  could  be  switched  for  un- 
loading to  a  terminal  point  on  the  tracks  of  any  of  the 
other  twenty  railway  companies  having  terminals  at  Chi- 
cago. The  Chicago  &  Northwestern  Railway  Company 
had  no  control  over  this  car  after  it  was  switched  to  the 
tracks  of  another  terminal  railway  company  in  Chicago 
over  which  the  car  might  go  to  reach  its  destination.  This 
illustration  applied  to  all  cars  that  are  unloaded  at  Chicago. 

The  result  was  that  unless  there  was  some  uniform  and 
reciprocal  understanding  with  reference  to  the  handling  of 
cars  at  Chicago  after  they  left  the  lines  of  the  railway  which 
owned  and  operated  them,  it  might  happen  that  any  rail- 
way company  would  be  entirely  divested  of  its  rolling  stock 
and  equipment  for  the  accommodation  of  patrons  of  other 
railway  companies. 


248 

Without  a  uniform  and  reciprocal  understanding  be- 
tween railway  companies  to  expedite  the  loading  and  un- 
loading of  each  other's  cars,  it  might  have  become  neces- 
sary for  a  railway  company  to  refuse  to  permit  its  cars  to 
go  beyond  its  own  line.  This  would  have  required  the 
shipper  to  reload  the  freight  into  cars  of  other  railway 
companies  at  junctions  with  connecting  lines.  The  interfer- 
ence and  annoyance  that  would  have  resulted  to  interstate 
commerce  from  such  practice  was  manifest. 

To  meet  this  difficulty,  prior  to  the  organization  of  the 
Car  Service  Association  the  railway  companies,  by  the  ap- 
plication, separately  and  individually,  of  car  service  rules, 
tried  to  hasten  the  movement  of  their  own  cars  on  the  lines 
of  other  railway  companies.  These  rates  were  not  uniform 
and  this  plan  was  found  to  be  impracticable,  for  the  reason 
that  the  elements  of  uniformity  and  reciprocity  between 
railway  companies  doing  an  interchange  business  were  en- 
tirely lacking.  The  business  necessities  of  the  country  de- 
manded that  the  railway  companies  enter  into  a  uniform 
and  reciprocal  arrangement  with  reference  to  the  use  cf 
each  other's  cars  when  they  were  allowed  to  go  beyond  the 
jurisdiction  of  the  tracks  of  the  owner  of  the  cars. 

At  a  terminal  point  like  Chicago,  where  twenty-one 
railway  companies  were  doing  an  interchange  business,  it 
became  manifest  that  it  was  necessary  to  have  an  associa- 
tion or  clearing  house  that  would  keep  track  of  the  move- 
ments of  all  the  cars,  and  would  see  to  the  enforcement  of 
reasonable  car  service  rules. 

In  such  an  arrangement  there  could  not  be  reciprocity 
without  a  uniform  rate  upon  all  of  the  railways  in  the  Chi- 
cago district.  Detentions  within  the  territory  wherein  a 
lesser  rate  was  charged  would  be  greater  than  in  the  terri- 
tory wherein  a  higher  rate  was  charged.  In  addition  to 
this,  many  large  business  interests  receiving  freight  by  sev- 
eral lines,  in  the  absence  of  a  uniform  car  service  charge, 
would  be  subjected  to  various  and  fluctuating  car  service 
rates.  Smaller  business  interests,  doing  business  solely 
over  one  line,  might  frequently  be  placed  at  a  disadvant- 
age in  competing  for  business  with  those  doing  business 
over  another  line,  owing  to  the  difference  of  car  service 
rates  as  between  the  two  lines.  To  illustrate,  the  cars  of 
the  Chicago,  Burlington  &  Quincy  Railroad  Company 
went  to  destinations  upon  the  tracks  of  every  other  railway 


249 

company  in  Chicago,  and  if  each  railway  company  had  its 
own  rate  for  car  service,  independent  of  the  car  service 
rates  of  other  railway  companies,  there  would  have  been 
as  many  different  rates  upon  the  cars  of  the  Chicago,  Bur- 
lington &  Quincy  Railway  Company  as  there  were  railway 
companies  in  Chicago. 

To  meet  this  situation,  it  was  decided  by  the  railway 
companies,  that  a  car  service  association  should  be  organ- 
ized to  secure  the  prompt  loading  and  unloading  of  cars, 
and  to  enforce  a  reasonable  and  uniform  charge  of  one  dol- 
lar per  day  for  unreasonable  detention  of  cars. 

On  November  15,  1888,  the  following  circular  was 
published  in  the  daily  papers  of  the  City  of  Chicago,  and 
distributed  to  the  patrons  of  the  railway  companies : 

"To   Consignors   and   Consignees   of  Freight   in   Chicago 
and  Vicinity. 

"Gentlemen :  Having  in  view  the  inconvenience  and 
loss  to  patrons  and  railroads  alike,  consequent  upon  the 
inability  to  promptly  provide  cars  requisite  for  the  hand- 
ling of  freight,  and  believing  that  such  trouble  is  mainly 
due  to  the  delay  in  unloading  and  loading  of  cars,  the  rail- 
road companies  have  resolved  to  make  an  effort  to  largely 
reduce,  if  not  abolish  this  evil. 

"In  their  efforts  to  accommodate  their  patrons,  the 
railroads  have  permitted  an  abuse  of  their  equipment, 
which  has  become  intolerable.  They  fully  realize  that  their 
own  laxity  of  method  is  largely  responsible  for  this  abuse, 
and  they  desire,  in  applying  the  remedy,  to  exercise  due 
moderation,  and  give  no  occasion  for  complaint. 

"Notice  is  hereby  given  that  on  and  after  the  19th  day 
of  November,  1888,  there  will  be  made  a  minimum  charge 
of  one  dollar  per  car  per  day,  or  any  fraction  thereof,  for 
the  use  of  cars  not  loaded  or  unloaded  within  forty-eight 
hours  after  being  placed  in  position  to  load  or  unload. 

"The  railroads  desire  it  understood  in  adopting  this 
plan  that  the  amount  will  not  compensate  them  for  the  loss 
occasioned  by  the  use  of  their  cars  and  tracks  for  ware- 
house room,  and  that  they  will  be  best  pleased  when  there 
is  least  to  collect. 

"It  is  manifestly  unjust  that  the  shipper  who  has  in- 
vested in  real  estate,  warehouse  and  other  appliance^ 


250 

should  have  these  advantages  neutralized  by  the  use  of 
cars  as  storage  room  by  his  competitor,  who  has  not  invest- 
ed a  dollar  in  similar  facilities,  and  who,  in  tying  up  and 
rendering  useless  for  long  periods  the  railroad  equipment 
of  the  country,  contributes  to  a  scarcity  of  cars  which  in- 
jures not  only  the  railroads,  but  all  their  patrons. 

"That  there  may  be  no  discrimination  in  the  enforce- 
ment of  the  rules  and  collection  of  the  charges  herein  an- 
nounced, the  entire  matter  has  been  placed  in  charge  of  an 
organization  which  will  act  for  all  interests  alike." 

This  circular  was  signed  by  twenty-one  railways  with 
terminals  in  Chicago. 

The  rules  put  into  effect  by  the  foregoing  notice  are 
set  out  in  full  in  Appendix  "A."  (Ususal  Car  Service  As- 
sociation rules). 

The  effect  of  the  enforcement  of  these  rules  was  im- 
mediate. The  congestion  of  cars  upon  the  terminals  of  the 
railways  in  Chicago  was  relieved,  and  the  entire  situation 
at  once  became  greatly  improved. 

Prior  to  the  enforcement  of  the  rules  above  referred  to 
few  railway  companies  kept  a  systematic  record  of  the  de- 
tention of  cars.  The  records  of  the  Chicago  and  Eastern 
Illinois  Railroad  Company,  then  and  now  a  prominent  coal 
carrying  road,  forcibly  illustrate  the  advantages  derived 
from  the  enforcement  of  these  rules.  The  experience  of 
that  line  is  shown  in  the  following  statement : 

Average  detention  before      Average  detention  after 

inauguration  of  car  inauguration  of  car          Decrease  in  average  time 

service  rules.  service  rules.  of  unloading  cars. 

Month.  Avge.  days.  Month.  Avge.  days. 

Dec.   1887         12.20  Dec.    1888          3.22  8.98  days  per  car. 

Jan.    1888        10.60  Jan.    1889          3.15  7.45      "       "      " 

Feb.   1888         12.40  Feb.    1889          2.52  9.88      "       "      " 


During  the  two  months  immediately  preceding  the  es- 
tablishment of  car  service  rules  the  average  detention  in 
unloading  cars  on  the  tracks  of  this  road  at  Chicago  was 
in  September,  1888,  15.50  days,  and  in  October,  1888,  14.1.0 
days. 


251 

In  the  case  of  the  Chicago  and  Alton  Railroad,  the  fol- 
lowing statistics  have  been  obtained : 

Dec.  1887,  Avg.  8.00  days  Dec.  1888,  Avg.  2.30  days  Decrease  5.70  dys 
Jan.    1888,      "     6.50     "     Jan.    1889,      "     1.90     "  "        4.60   " 

Feb.  1888,      "     6.00    '       Feb.  1889,      "     1.52     "  "        4.48  " 

The  experience  of  the  Atchison,  Topeka  and  Santa  Fe 
Railway  was  as  follows : 

Dec.  1887,  Avg.  10.18  days  Dec.  1888,  Avg.  2.37  days  Decrease  7.81  dys 
Jan.  1888,    "      8.64     "     Jan.    1889,      "     1.96     "  "         6.68  " 

Feb.  1888,     "       8.17     "     Feb.  1889,      "     1.58     "  "         6.59" 

During  the  two  months  just  prior  to  the  adoption  of 
the  rules  the  average  detentions  were  9.29  days  for  Sep- 
tember and  9.49  days  for  October. 

The  records  of  the  association  show  a  steady  decrease 
in  the  average  daily  detentions  of  cars  on  all  roads  for  the 
first  three  months  of  operation  under  the  car  service  rules, 
the  number  of  cars  reported  and  the  average  detention  for 
each  month  being  as  follows: 

Cars  handled  Average  detention. 

December,  1888,  69,010  2.37  days 

January,       1889,  55>7i2  2.19     " 

February,    1889,  55,314  1-94     " 

So  successful  were  the  results  obtained  that  within  two 
years  twenty-two  car  service  associations  were  formed  at 
different  points,  covering  pretty  generally  the  territory  be- 
tween the  Great  Lakes  and  the  Gulf,  Denver  and  the  At- 
lantic coast.  A  compilation  of  the  operations  of  these  as- 
sociations shows  that  during  the  months  of  May,  June  and 
July,  1890,  there  were  handled  under  car  service  rules 
1,220,382  cars,  the  average  detention  per  car  being  1.64 
days,  against  an  average  detention  before  car  service  rules 
became  operative  of  over  four  days  in  the  East  and  six 
to  eight  days  in  the  West. 

In  1891  some  trouble  began  to  be  experienced  by  rail- 
way companies  whose  lines  ran  through  the  territory  of 
more  than  one  car  service  association,  over  variations  of 
practice  and  time  allowances  for  the  loading  and  unloading 
of  different  commodities,  occasioning  much  embarrass- 
ment to  the  railroad  companies  and  frequent  charges  of 
discrimination  from  patrons.  For  instance,  one  railroad 
company,  a  member  of  several  different  associations  (in 
each  association  handling  for  the  same  individual,  firm  or 


252 

corporation,  some  particular  commodity  upon  which  in 
one  territory  48  hours'  time  was  allowed,  in  another  addi- 
tional time  was  given,  and  in  a  third  still  more  time  was  al- 
lowed), could  not  explain  upon  any  reasonable  basis  why 
the  same  car  containing  the  same  commodity  should  under 
substantially  the  same  conditions  have  while  upon  the  same 
railroad  different  time  allowances  at  different  places.  The 
result  of  an  investigation  extending  over  nearly  the  entire 
country,  showed  that  about  95  per  cent,  of  the  cars  report- 
ed to  the  various  associations  were  released  within  the  time 
limit  of  48  hours.  As  this  allowance  was  found  to  be  well 
adapted  to  requirements,  it  came  to  be  generally  adopted 
as  the  standard. 

The  administration  of  car  service  rules  throughout  the 
country  has  from  the  outset  been  placed  in  the  hands  of 
bureaus  known  as  car  service  associations,  each  under  the 
charge  of  a  manager.  Under  the  intelligent  and  impartial 
administration  of  the  rules  by  the  managers  of  the  various 
associations,  the  usefulness  of  car  service  regulations  has 
increased  steadily  from  year  to  year  until  the  calendar  year 
1903  there  were  handled  by  the  car  service  associations  of 
the  country,  28,634,020  freight  cars,  upon  which  the  total 
average  detention  per  car  was  but  1.69  days. 

Results  equal  to  those  obtained  at  Chicago  in  1888 
were  obtained  at  other  and  smaller  points  at  later  dates  by 
extending  the  jurisdiction  of  the  association. 

Notice  was  served  July  15,  1902,  that  association  rules 
would  apply  at  Joliet,  Illinois,  beginning  August  1st  of 
that  year.  Records  have  been  secured  for  560  cars  held 
on  the  tracks  of  the  Elgin,  Joliet  and  Eastern  Railway  at 
Joliet  for  40  days  or  more  which  were  handled  previous  to 
August  1,  1902;  the  total  detention  for  such  cars  was  41,- 
906  days,  the  average  74.83  days;  54  of  the  cars  were  held 
more  than  100  days. 

The  average  detention  in  days  for  cars  held  by  the 
Elgin,  Joliet  and  Eastern  Railway  at  Joliet,  Illinois,  from 
June  1  to  October  30,  1902,  by  months,  was  as  follows : 

June,  1902,         8. 29  days  \  Prior  to  the  adoption  of  car 

July,  "  4.28  /         service  rules. 


August,  1.41 

September,        "  1.19 

October,  "  1.06 

For  the  year  1903,  1.50 


I  After  the  adoption  of  car 


service  rules. 


253 

During  the  period  of  nearly  sixteen  years  that  the  Chi- 
cago Car  Service  Association  has  been  in  existence  the 
number  of  cars  handled  has  increased  from  about  600,000 
the  first  year  to  1,828,045  for  the  year  1903.  Ninety-two 
and  eighty-seven  hundredths  per  cent.  (92.87)  of  the  cars 
reported  during  the  past  year  were  released  within  the  time 
allowed  for  unloading,  and  the  total  average  detention  of 
cars  by  consignees  was  1.71  days. 

The  rules  of  the  association  have  been  adjusted  from 
time  to  time  to  establish  a  better  understanding  of  those 
functions  which  are  the  obligation  of  the  carrier,  and  those 
which  constitute  the  proper  duty  of  the  shipper  or  con- 
signee. 

The  Agreement  and  Rules  of  the  association  in  force 
at  the  present  time  are  attached  to  this  statement  as  Ap- 
pendix "C." 

The  principles  underlying  the  Rules  are  as  follows : 

1.  Any  action  or  omission  on  the  part  of  a  shipper  or 
consignee  which  operates  to  cause  unreasonable  delay  in 
the  movement  of  a  car  or  its  release  for  further  service,  is 
made  the  basis  of  a  charge  for  such  use  or  detention  of  the 
car. 

2.  No  charge  is  made  against  a  shipper  or  consignee 
for  any  detention  of  a  car  for  Which  he  is  not  responsible. 

3.  No  car  service  charge   is   ever  made  until  after 
reasonable  time  has  been  allowed  for  the  use  of  the  car, 
and  a  reasonable  charge  is  then  made  for  such  further  de- 
tention of  the  car  as  may  be  desired  by  the  person  in  con- 
trol of  it. 

4.  All  car  service  charges  are  based  on  the  rate  of 
one  dollar  ($1.)  per  car  per  day,  for  the  working  days  of  the 
year;  no  charge  being  made  for  Sundays  and  legal  holi- 
days. 

5.  All  storage  charges  are  based  upon  the  car  service 
rate,  and  are  as  nearly  as  may  be  an  exact  equivalent. 

C.  Concessions  to  public  necessity  and  to  established 
customs  of  trade  have  been  made  by  the  allowance  of  addi- 
tional time  on  coal  and  coke,  grain,  baled  hay  and  straw. 
Further  concessions  are  made  by  exemption  of  commodi- 
ties likely  to  be  injured  by  inclement  weather. 


254 

7.  In  cases  of  doubt  and  where  justice  demands  it, 
the  manager  is  vested  with  authority  to  give  relief  from 
charges  which  have  accrued  and  to  order  the  refund  of 
charges  collected. 

S.  To  interpret  the  rules  equitably  and  to  direct  their 
application  justly  and  alike  for  all  railroads,  shippers  and 
consignees,  the  manager  is  given  supervision  of  all  cars 
within  the  territory  of  the  association. 

9.  The  organization  of  which  the  manager  has  charge 
consists  of  inspectors,  accountants  and  the  necessary  cler- 
ical force  to  enter  upon  the  records  the  car  reports  received 
daily  from  the  different  railways.  No  car  service  or  stor- 
age charges  are  collected  by  the  manager  or  any  employe 
of  the  association;  the  function  of  the  association  being 
merely  that  of  a  bureau  of  record,  inspection,  supervision 
and  adjustment. 

In  addition  to  the  strictly  railroad  considerations, 
there  are  economic  principles  underlying  the  rules,  the 
consideration  of  which  is  essential  to  a  full  understanding 
of  the  car  service  question. 

In  a  limited  sense  the  function  of  a  railway  company 
is  to  furnish  cars  for  the  movement  of  freight.  From 
movement  only  does  it  derive  adequate  revenue.  Its  high- 
est interest,  therefore,  is  to  stimulate  such  movement  that 
the  largest  number  of  cars  may  with  the  greatest  frequency 
be  used  for  freight  transportation.  These  considerations, 
therefore,  impel  the  railways  to  place  their  car  equipment 
promptly  at  the  disposal  of  shippers,  require  the  cars  to  be 
promptly  loaded,  move  them  expeditiously  to  their  desti- 
nations, and  there  to  be  unloaded  with  reasonable  diligence 
that  they  may  again  become  available  for  loading. 

These  considerations  have  little  influence  with  the 
shipper  and  still  less  influence  with  the  consignee. 

In  this  connection  attention  is  called  to  the  Coal  Ship- 
pers' Association  of  Chicago,  at  whose  instance  this  bill  is 
sought  to  be  filed.  This  Association  consists  of  sixty-two 
members,  of  whom  only  three  are  exclusively  miners  of 
coal.  Of  the  others,  twenty  have  some  interest  in  mines, 
but  are  primarily  jobbers  and  many  of  them  retailers. 
Thirty-nine  are  exclusively  coal  dealers.  The  membership 
is,  therefore,  made  up  of  those  whose  primary  interests 


255 

justify  their  classification  as  three  producers  and  fifty-nine 
dealers  in  coal.  Of  these  sixty-two  members,  fifteen  only 
have  yards  in  which  a  supply  of  coal  may  be  stored  for  the 
purpose  of  conducting  their  business.  The  remaining 
forty-seven  members  are  dependent  at  Chicago  entirely  on 
track  facilities  of  the  railway  companies  and  the  use  of  cars 
for  storage  purposes.  As  it  is  necessary  for  coal  dealers 
to  carry  at  all  times  some  stock  of  coal  on  hand,  such  deal- 
ers as  the  forty-seven  above  referred  seek  to  use  cars  for 
storage  purposes,  and  the  resulting  expense  of  car  service 
has  always  been  to  them  a  source  of  contention. 

Car  service  rules  stand  as  a  bar  to  the  control  and 
manipulation  of  the  soft  coval  market  of  Chicago.  So  long 
as  the  regulations  of  the  railway  companies  compel  the 
prompt  unloading  of  cars,  the  supply  of  coal  for  current  use 
in  the  city  is  ample,  and  there  is  a  rapid  return  of  cars  to 
the  mines  for  reloading,  with  the  result  that  the  mines  are 
regularly  operated,  the  current  of  traffic  steadily  main- 
tained by  the  railways,  the  consumers  in  the  city  abundant- 
ly supplied,  and  normal  prices  prevail  in  the  coal  market. 

The  miners  of  coal  and  likewise  the  consumers,  are  de- 
pendent entirely  upon  the  supply  of  cars  to  maintain  nor- 
mal conditions.  The  movement  of  coal  to  Chicago  is  an 
unending  stream,  and  so  inadequate  now  are  the  storage 
facilities  of  consignees  that  the  city  is  dependent  upon  the 
daily  movement  of  cars  to  maintain  its  supply  for  even  a 
short  time.  Any  interruption  or  a  cessation  for  a  few 
days  of  the  coal  movement  of  the  railway  companies  will 
produce  a  shortage  of  coal.  While  the  rules  of  the  car  ser- 
vice association  cannot  prevent  the  holding  of  cars  for 
speculative  purposes  in  times  of  serious  disturbance  and 
cessation  of  work  at  the  mines,  they  ordinarily  exert  a  de- 
terrent effect  upon  manipulation  of  the  supply  and  specula- 
tion in  the  price  of  coal. 

It  will  be  seen  from  the  above  that  the  car  service 
charges  are  not  a  fixed  charge  upon  all  freight  coming  into 
Chicago,  but  only  originate  by  reason  of  the  action  of  the 
shipper  or  consignee.  Ninety-three  per  cent,  of  the 
freight  handled  at  the  terminals  in  Chicago  does  not  pay 
any  car  service  charges.  The  Car  Service  Association  is 
one  of  the  few  associations  in  the  commercial  world  that, 
as  its  efficiency  to  the  public  is  increased,  the  revenues  of 
its  members  from  car  service  decrease. 


256 

In  1888,  prior  to  the  formation  of  car  service  associa- 
tions, the  average  detention  to  cars  under  load  was,  as 
near  as  can  be  ascertained,  at  least  five  days  per  car.  In 
1903,  after  the  car  service  association  rules  had  been  in 
force  and  effect  for  a  period  of  fifteen  years,  the  average 
time  was  1.69  days  per  car.  The  usefulness  of  the  associa- 
tion is  conclusively  demonstrated  when  it  is  considered 
that  in  1903  28,634,020  cars  were  handled  by  car  service  as- 
sociations. Computing  the  time  consumed  in  loading  and 
unloading  on  the  five  day  basis  existing  in  1888,  for  these 
28,634,020  cars  there  would  have  been  143,170,100  car  days 
consumed  in  1903.  Computing  the  time  consumed  in  load- 
ing and  unloading  on  the  1.69  day  basis  existing  in  1903, 
for  these  28,634,020  cars  there  were  48,391,494  car  days 
actually  used.  A  saving  was  thereby  effected  in  the  year 
1903  under  the  operation  of  the  rules  of  car  service  asso- 
ciations of  94,778,606  car  days,  equal  to  the  service  of  315,- 
928  cars  for  the  three  hundred  working  days  of  the  year, 
or  21J  per  cent,  of  the  entire  freight  car  equipment  of  the 
country.  To  withdraw  the  service  of  such  a  number  of 
cars  would  put  the  railway  companies  back  for  equipment 
to  their  status  for  the  year  1900,  with  the  result  at  the  pres- 
ent time  that  they  would  be  unable  to  meet  the  transporta- 
tion requirements  of  the  country  and  a  disastrous  car  fa- 
mine would  ensue.  These  figures  conclusively  prove  that 
a  car  service  association  does  not  restrain  but  facilitates 
commerce. 

It  is  respectfully  submitted  that  a  car  service  associa- 
tion at  every  large  commercial  point  where  there  are  many 
connecting  lines  is  a  public  necessity,  to  prevent  in- 
efficiency in  the  operation  of  the  railways  and  to  secure  the 
release  of  equipment  for  further  use  in  the  channels  of 
commerce.  It  conserves  and  promotes  the  interests  of  the 
public  and  of  the  railway  companies  by  the  equitable  distri- 
bution and  fullest  use  of  the  freight  car  equipment  of  the 
country. 

Respectfully  submitted, 

C.  W.  SANFORD, 

Manager  Chicago  Car  Service  Association. 
Chicago,  Illinois,  May  5th,  1904. 


SUPPLEMENT  No.  1 


TO 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES 


PUBLISHED   BY   THE 


National  Association  of  Car  Service 

Managers.  Amerjcan   Associate 

Of 
—  Demurrage  Officers, 

1906. 


SUPPLEMENT  No.  1 


TO 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES 


PUBLISHED   BY   THE 


National  Association  of  Car  Service 

Managers.  American   Association 

Of 
Demurrage  Officers. 


1906. 


SUPPLEMENT  No.  1 


TO 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES 


PUBLISHED  BY   THE 


National  Association  of  Car  Service 

Managers.  American   Association 

Of 
Demurrage  Officers. 


1906. 


"W)N  ACCORDANCE  with  a  resolution  adopted  by  the 
<t  National  Association  of  Car  Service  Managers,  in 
annual  convention  at  Washington,  D.  C,  May,  1905, 
the  following  compilation  of  court,  railroad  commission 
and  national  government  departmental  decisions  in  car 
service  cases,  is  respectfully  submitted,  as  supplement 
number  one,  to  our  publication  of  1904,  entitled  LEGAL 
DECISIONS  IN  CAR  SERVICE  CASES. 

This  supplement  is  intended  to  include  a  synopsis 
of  all  decisions  bearing  upon  car  service  rules,  reported 
to  your  Secretary  since  1904. 

The  decisions  are  arranged,  as  nearly  as  possible, 
in'  date  order,  and  the  legal  citation  shown  for  all  report- 
ed cases. 

The  index  shows  the  principal  points  covered  by 
each  decision. 

A.  G.  THOMASON, 

Secretary. 
SCRANTON,  PA.,  March  14,  1906. 


INDEX, 


Supreme  Court   of    Georgia--  

October,  1892. 
Harris  vs.  the  C.  R.  R.  &  Banking  Co.  of  Ga. 

Subordinate  agents  of  [a.  railroad  company  have  no 
power  to  bind  the  railroad  to  suspend  the  general 
rule  to  enforce  demurrage  charges. 


Interstate  Commerce    Commission- 
October,   1900. 
Penna.  Millers'  State  Ass'n  vs.  The  P.  &  R.  Ry.  Co.  et.  al. 

Discrimination  charged  in  the  allowance  of  48  hours 
for  sampling  and  selling  grain  at  Philadelphia  in 
addition  to  48  hours  allowed  for  unloading,  while 
but  48  hours  are  allowed  on  similar  commodities 
at  interior  points  in  Pennsylvania.  The  Commis- 
sion concludes  that  48  hours  net  should  be  allowed 
for  unloading  at  all  interior  points. 


Decision  of  the  Quartermaster- General, 

U.    S.    Army  36 

April,  1902. 

War  Department  decides  that  it  will   comply  with  car 
service  rules  as  applied  to  the  public. 


Circuit  Court,  Grundy  County,   la. 39 

February  10,  1903. 
C.  &  N.  W.  Ry.  vs.  Townsend  &  Merrill  Co. 

Suit    for   car    service    charges  —  Consignee   confessed 
judgment. 


iv 

Clark  Quarterly    Court,  Winchester,  Ky  4O 

March  31,  1903. 
E.  H.  Doyle  vs.  L.  &  N.  R.  R.  Co. 

Freight  held  for  demurrage — Delivered  under  writ  of 
replevin— Court  decided  Consignee  bound  by  terms 
of  bill  of  lading— Not  competent  to  refer  to  other 
cars  received  at  same  time  and  unloaded  within 
48  hours— Notice  of  arrival,  payment  of  freight 
charges,  and  placing  of  cars  did  not  constitute  a 
new  contract. 


Supreme    Court    of    Mississippi-  43 

October,  1903. 
N.  O.  &  N.  E.  R.  R.  Co.  vs.  A.  H.  George  &  Co. 

Suit  in  replevin— Cars  delayed  by  congested  private 
siding — Part  delivered  and  part  held  subject  to 
lien  for  demurrage. 

Court  of  Common   Pleas,  Summit  County,  Ohio     59 

May,   1904. 
The  Thomas  Phillips  Co.  vs.  Erie  R.  R.  Co. 

Demurrer  —  Consignee  detained  cars  on  his  private 
siding  and  refused  to  pay  demurrage — Railroad  re- 
fused to  place  cars  on  private  siding,  but  placed 
them  on  public  delivery  track — Railroad  held  con- 
tents of  one  car  delayed  on  public  delivery  track 
subject  to  lien  for  demurrage. 

Circuit  Court,  Summit   County,  Ohio-  — -      64 

April,   1905. 

The  Thomas  Phillips  Co.  vs.  Erie  R.  R.  Co 
Appeal  from  Court  of  Common  Pleas,  as  above. 


Superior  Court  of  Penn'a.-- Eastern  District 69 

October,  1904. 
B.  &  O.  R.  R.  Co.  vs.  Gray's  Ferry  Abattoir  Co. 

Consignee  denied  notice  of  rules,  that  he  never 
agreed  to  be  bound  by  them,  and  that  they  were 
not  necessary.  Claimed  not  notified  of  arrival  of 
cars  except  by  placing  on  private  siding — Claimed 
irregular  delivery  of  weekly  supply  of  coal. 


Supreme   Court  of  Mississippi  74 

November,   1904. 
The  Y.  &  M.  V.  R.  R.  Co.  vs.  C.  J.  Searles. 

Railroad  refused  delivery  on  consignee's  siding  at  his 
warehouse— Consignee  claimed  actual  and  statutory 
damages — Charged  discrimination,  and  a  trust  or 
combination  in  restraint  of  trade — Rules  enforced 
under  Mississippi  Railroad  Commission. 


Supreme  Court    of    Alabama  113 

November,  1904. 
So.  Ry.  Co.  vs.  Lockwood  Mfg.  Co. 

Delivery  upon  team  track  for  unloading  does  not  de- 
stroy lien  of  railroad  for  demurrage  accrued  after 
such  placing. 


Decision    of   the   Comptroller  of   the  Treasury          117 

November  25th,  1904. 

Cars  delayed  in  unloading  by  a  third  party  —  Comp- 
troller decides  that  the  Government  should  pay 
the  same  demurrage  charges  as  the  public,  recov- 
ering in  such  cases,  from  the  one  at  fault  for  delay. 


Decision   of  United   States  Attorney  General 121 

January,   1905. 

Complaint  of  Coal  Shippers'  Association  of  Chicago 
that  the  Chicago  Car  Service  Association  was  a 
combination  in  restraint  of  trade  and  commerce 
contrary  to  the  Sherman  Anti-Trust  Law. 


VI 

Franklin,  Ohio,  Circuit  Court  (2nd)  124 

May  4th,  1905. 
P.  C.  C.  &  St.  L.  Ry.  Co.  vs.  H.  L.  Mooar  Lumber  Co. 

Goods  held  by  railroad  subject  to  lien  for  demurrage 
— Ordered  to  public  warehouse  —  Replevined  by 
consignee  —  Lien  for  demurrage  exists  independ- 
ently of  stipulation  in  contract  of  shipment. 


Court  of  Appeal,    Parish    of   Orleans,    Louisiana    128 

May,  1905. 
I.  C.  R  R.  &  Y.  M.  V.  R.  R.  vs.  B.  Gairard,  et.  al. 

Defendent  avers  no  notice  of  enforcement  of  car  ser- 
vice rules,  and  in  absence  of  specific  contract 
covering  demurrage  charges  none  can  be  made — 
R.  R.  asserted  a  lien  on  goods  for  car  service 
charges. 


Interstate   Commerce    Commission—.  136 

August,  1905. 

T.  M.  Kehoe  &  Co.  vs.  P.  &  R.  Ry.  et.  al. 

Shipments  of  hay  refused  by  consignees,  and  car  ser- 
vice charges  accrued  pending  disposition  by  shipper. 
Shipper  contends  that  demurrage  charge  should  be 
but  20  cents  per  day,  as  that  is  the  rate  of  inter- 
change between  roads. 


Supreme  Judicial    Court    of    Maine  142 

Fisher  vs.  Boston  &  Maine   R.  R.  Co. 

Extract  from  decision  bearing  upon  duty  of  railroads 
in  case  of  shipments  that  cannot  be  delivered  to 
connecting  carrier. 


Extract  from    Federal    Reports 142 

Bedford-Bowling  Green  Stone  Co.  vs.  Oman. 
Relation  of  railroads  to  private  switches. 


P«BH  11  f 
Jlrtutiny 
Stme  Bank  Building. 
&rrantntt. 


LEGAL  DECISIONS 


AND 


OPINIONS. 


SUPREME  COURT  OF  GEORGIA. 
OCTOBER  TERM,  1892. 

p/  Ga.  Reports,  p.  5/7. 

HARRIS 

vs. 

THE    CENTRAL    RAILROAD    AND    BANKING    COMPANY    OF 
GEORGIA  ;  AND  VICE  VERSA. 


Where  it  affirmatively  appears  that  by  a  general  rule 
of  the  railway  company  demurrage  and  storage  were 
chargeable  to  all  patrons,  and  that  the  special  contract  de- 
clared upon  was  made  not  with  the  authorities  which  pro- 
mulgated the  rule  but  with  subordinate  agents  and  for  the 
express  purpose  of  avoiding  the  application  of  the  rule  in 
the  given  instance,  a  breach  of  the  contract  by  one  of  the 
same  agents  who  cooperated  in  making  it  affords  no  cause 
of  action  against  the  company.  Thus,  where  the  rules  of 
the  company  required  payment  of  demurrage  on  goods  not 
removed  within  forty-eight  or  sixty  hours  after  their  arrival, 
and  also  provided  for  the  storage  in  warehouses  of  goods 
not  removed  within  a  certain  time,  the  storage  and  drayage 
to  be  at  the  expense  of  the  consignee,  and  those  rules  were 


known  to  the  plaintiff  who  contracted  with  the  defendant's 
station  agent  and  soliciting  agent  that  in  consideration  of  a 
large  shipment  of  freight  over  the  defendant's  railway  no 
demurrage,  drayage  or  storage  would  be  charged  against 
him,  a  breach  of  the  contract  as  to  storage  gave  the  plaintiff 
no  right  of  action  against  the  company  to  recover  the  money 
paid,  and  it  was  not  error  to  grant  a  non-suit. 

BY  BLECKLEY,  Chief  Justice: 

The  railroad  company  had  general  rules  declaring  that, 
under  certain  circumstances,  demurrage  and  storage  would 
be  chargeable  to  all  patrons.  These  rules  were  known  to 
Harris,  who  combined  with  two  subordinate  agents  of  the 
company,  one  of  them  a  soliciting  agent,  the  other  a  station 
agent,  to  shun  the  rules  and  prevent  their  application  to  a 
large  shipment  of  freight  which  Harris  contemplated  mak- 
ing. On  account  of  the  volume  and  magnitude  of  the  ship- 
ment, these  agents  agreed  that  the  rules  should  not  be  en- 
forced against  Harris,  as  to  that  shipment;  and  on  account 
of  the  exemption  thus  granted  him,  he  agreed  to  make  and 
did  make  the  shipment  over  the  line  of  this  railroad,  instead 
of  making  it  over  the  line  of  some  other  company.  It  is  not 
to  be  presumed  that  soliciting  and  station  agents  have  been 
invested  with  any  suspending  power  over  general  rules 
which  the  company  has  adopted  and  promulgated,  and  the 
evidence  affords  no  indication  that  any  such  power  existed 
or  had  been  conferred  in  this  instance.  The  stipulations 
between  the  two  subordinate  agents  and  Mr.  Harris  did  not 
bind  the  company,  and,  for  this  reason,  he  was  properly  non- 
suited in  the  present  action. 

Judgment  affirmed.     Cross-bill  dismissed. 


BEFORE    THE    INTERSTATE    COMMERCE  .COM- 
MISSION. 


8    I.  C.  C.  Rep.  531. 

PENNSYLVANIA  MILLERS'  STATE  ASSOCIATION 

vs. 
THE  PHILADELPHIA  &  READING  RAILWAY  COMPANY  et  al 


Decided  the  8th  day  of  October,  1900. 


i.  It  is  well  settled  that  a  railway  company  whose 
road  is  wholly  within  the  bounds  of  a  single  state,  "when  it 
voluntarily  engages  as  a  common  carrier  in  interstate  com- 
merce by  making  an  arrangement  for  a  continuous  carriage 
or  shipment  of  goods  and  merchandise,  is  subjected,  so  far 
as  such  traffic  is  concerned,  to  the  regulations  and  provi- 
sions of  the  act  to  regulate  commerce." 

Interstate  Commerce  Commission  vs.  Detroit  G.  H.  & 
M.  R.  Co.  167  U.  S.  642,  42  L.  ed.  309,  17  Sup.  Ct. 
Rep. 


Cincinnati,  N.  O.  &  T.  P.  R.  Co.  vs.  Interstate  Com- 
merce Commission,  162  U.  S.  184,  40  L.  ed.  935,  5 
Inters.  Com.  Rep.  391,  16  Sup.  Ct.  Rep.  700. 


The  Daniel  Ball,   10  Wall.   565,  566,  sub   nom.    The 
Daniel  Ball  vs.  United  States,  19  L.  ed.  1002. 

2.  There  is  no  violation  of  section  2  of  the  Commerce 
law  shown  in  this  case  in  the  application  of  the  rule  allowing 
96  hours  for  unloading  cars  at  Philadelphia  ;  neither  is  there 
any  violation  of  that  section  in  the  facts,  that  on  all  other 
commodities  beside  those  to  which  the  96-hour  rule  is  ap- 
plied, only  48  hours  are  allowed  at  Philadelphia,  and  on 
coal,  coke,  pig  iron  and  iron  ore  72  hours  are  allowed  at  in- 


terior  points,  while  only  48  hours  are  allowed  on  other  traf- 
fic at  interior  points.  Section  2  prohibits  unjust  discrimin- 
ation in  "the  transportation  of  a  like  kind  of  traffic,"  and 
does  not  apply  where  the  traffic  is  of  different  kinds  or 
classes  not  competitive  with  each  other. 

3.  The  rule  of  section  4  of  the  law,  forbidding  the 
-greater  charge  for  the  shorter  than  the  longer  haul,  has  no 
application  to  this  case.    That  rule  is  based  on  distance  and 
relates  to  the  actual  transportation  charges  and  not  to  de- 
murrage charges,  which  are  in  the  nature  of  charges  for 
storage  in  the  cars  of  the  carrier.     (Interstate  Commerce 
Commission  vs.  Detroit^  G.  H.  &  M.  R.  Co.  167  U.  S.  644, 
42  L.  ed.  jop,  17  Sup.  Ct.  Rep.  986.)     If,  however,  such 
demurrage  charges  when  added  to  transportation  rates  re- 
sult in  greater  aggregate  charges  in  certain  cases  than  in 
other  cases  involving  longer  hauls,  this  may  constitute  undue 
preference  as  between  different  localities  under  section  3. 

4.  If  the  time  allowed  at  Philadelphia,  or  other  term- 
inals, for  loading  or  unloading  is  reasonable  and  that  allowed 
at  interior  points  is  unreasonably  small,  then  an  undue  pre- 
judice to  interior  points  in  violation  of  section  3  of  the  law 
might     result;      and,     if    demurrage     charges    are     made 
to  commence  before  the  expiration  of  a  reasonable  time  for 
loading  or  unloading,  this  may  be  a  violation  of  the  provi- 
sion of  section   i   of  the  law,  which  directs  "that  charges 
made   for  any  service  rendered  or  to  be  rendered  in  the 
transportation  of  passengers  or  property,  or  in  connection 
therewith,  or  for  the  receiving,  delivering,  storage,  or  hand- 
ling of  such  property,  shall  be  reasonable  and  just." 

5.  While  it  is  held  by  the  Supreme  Court  in  Interstate 
Commerce  Commission  vs.  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  167  U.  S.  479,  42  L.  ed.  243,  17  Sup.  Ct.  Rep.  896,  that 
the  Commission  has  no  power  to  prescribe  rates,  "maximum, 
minimum  or  absolute,"  the  Commission  may  order  the  car- 
riers to  "desist  from  the  continuance  of  an  unlawful  prac- 
tice."    (Interstate  Commerce  Commission  vs.  East  Tennes- 
see, V.  &  G.  R.  Co.  85  Fed.  Rep.  no).     The  Commission 
may  therefore  after  investigation  find  a  particular  rate  to  be 
unlawful  and  prohibit  the  exaction  of  that  rate,  or  find  the 


time  allowed  for  loading  or  unloading  unlawful,  or,  in  other 
words,  unreasonably  small,  and  forbid  the  charging  of  de- 
murrage at  the  expiration  of  that  time  and  before  the  ex- 
piration of  a  reasonable  time. 

6.  It  is  held  that  48  hours  is  an  unreasonably  small  al- 
lowance of  time  for  unloading  where  any  portion  of  it  has 
to  be   consumed   in   attending  to   the   preliminaries   neces- 
sarily antecedent  to  the  actual  process  of  unloading,  and  it 
is  ordered  that  as  to  grain,  flour,  hay,  and  feed  consigned 
to  and  deliverable  at  interior  points  in  the  territory  of  the 
Philadelphia  Car  Service  Association,  the  defendants  cease 
and  desist  from  charging  demurrage  until  the  expiration  of 
a  reasonable  time  for  unloading  after  the  cars  have  been 
placed  for  unloading  and  notice  of  such  placing  has  been 
given  the  consignee  or  other  proper  party.     It  is  further 
held  that  48  hours  will  be  a  reasonable  time  for  the  actual 
unloading. 

7.  By  section  I  of  the  law,  storage  is  named  as  a  "ser- 
vice in   connection"   with  transportation,   and   the   charges 
therefor  are  required  to  be  "reasonable  and  just."  The  schud- 
ule  of  rates  required  by  section  6  of  the  law  to  be  printed, 
posted  and  filed  with  the  Commission  should  state,  among 
other  terminal  charges,  the  rules  and  regulations,  if  any,  of 
the  carrier  in  relation  to  storage ;  and  the  Commission  has  so 
ordered. 

WILSON  WELSH,  for  the  complainant. 

CHARLES  HEEBNER,  for  Philadelphia  &  Reading  Rail- 
way Company,  the  Central  Railroad  of  New  Jersey,  the 
Perkiomen  Railroad  Company  and  the  Stony  Creek  Rail- 
road Company. 

GEORGE  V.  MASSEY,  for  Pennsylvania  Railroad  Com- 
pany and  the  Northern  Central  Railway  Company. 

F.  I.  GOWEN,  for  Lehigh  Valley  Railroad  Company. 

DAVID  WILLCOX,  for  Delaware  &  Hudson  Canal  Com- 
pany. 


S.  P.  WoivVERTON,  for  Erie  &  Wyoming  Valley  Rail- 
road Company,  Central  Pennsylvania  &  Western  Railroad 
Company,  Bangor  &  Portland  Railway  Company,  Delaware, 
Susquehanna  &  Schuylkill  Railroad  Company. 


REPORT  AND  OPINION  OF  THE  COMMISSION. 

CLEMENTS,  Commissioner: 

The  Pennsylvania  Millers'  State  Association,  complain- 
ant in  this  cause,  is  a  corporation  organized  under  the  laws 
of  the  State  of  Pennsylvania.  The  object  of  the  Association 
as  stated  in  its  complaint  to  this  commission,  is  "to  protect 
and  promote  the  interests  of  the  milling  industry  of  the 
State  and  of  all  engaged  in  the  purchase  and  sale  of  grain, 
flour,  feed  and  hay,  for  consumption  in  the  State  and  for 
export." 

The  complaint  alleges  that  the  members  of  the  Asso- 
ciation "are  engaged  in  the  manufacture  of  flour  and  feed" 
and  that  "they  are  purchasers  of  grain,  feed,  flour,  hay  and 
other  merchandise  throughout  the  west  for  home  consump- 
tion and  for  export,"  and  charges : 

First.  "That  the  defendants  have  been  and  are  guilty 
of  violations  of  the  provisions  of  sections  i,  2,  3  and  4  of 
the  Act  to  regulate  commerce,  in  that  they  have  long  estab- 
lished and  maintained,  and  do  establish  and  maintain,  car 
service  rules  and  regulations,  that  are  unjust  and  unreason- 
able, and  that  discriminate  against  such"  of  the  members  of 
the  complainant  "as  are  located  at  interior  points  of  the 
State  upon  the  lines  of  the  defendant  companies." 

Second.  That  "this  discrimination  consists  in  charging 
at  interior  points  $1.00  per  car  for  each  day  or  frac- 
tion of  a  day  said  car  may  be  detained  over  48 
hours  in  unloading  or  loading,  while  on  cars  loading  with 
coal,  coke,  pig  iron  or  iron  ore,  delivered  at  interior  points, 
72  hours  are  allowed  for  loading  or  unloading,  and  at  term- 
inal points,  such  as  Philadelphia,  New  York  and  Baltimore, 
the  following  privileges  are  accorded :" 


(a)  "In  Philadelphia,  96  hours  on  all  cars  that  arrive 
at  the  delivery  points  of  the  respective  companies  after  no- 
tice of  such  arrival  has  been  given  to  the  consignee.     The 
latter  may  then  order  the  car  to  another  delivery  point,  and 
will  still  have  96  hours  to  unload,  after  its  arrival  at  the 
point  designated ;  or  if  the  car  contains  flour  or  grain, he  may 
order  it  to  the  warehouses  of  the  defendant  companies  and 
10  days'  freight  storage  is  accorded  him  on  the  grain  or 
flour — whether  for  local  consumption  or  export.     In  New 
York,  the  time  allowed  on  flour  is  from  5  days  to  40,  and 
on  grain,  feed  and  hay,  120  hours.     In  Baltimore,  96  hours 
are  allowed  on  mill  feed,  hay  and  straw,  and  120  hours  on 
grain  and  flour." 

(b)  "In  addition   to  these  special   and  discriminating 
privileges  at  the  three  terminal  points  above  named,  con- 
signees may  order  flour  from  store  at  the  expiration  of  the 
10  days  allowed  to  a  private  warehouse,  or  to  a  dock  for 
export, — without  any  additional  charge.    And  when  ordered 
to  the  warehouses  of  the  defendant  companies,  the  labor  of 
unloading  cars  is  all  done  at  the  expense  of  the  carrying 
companies." 

Third.  "That  defendants  make  no  corresponding  al- 
lowances in  rates  of  freight  to  complainants,  and  do  not  af- 
ford any  assistance  in  loading  or  unloading  cars,  but  com- 
plainants are  compelled  to  pay  the  same  rates  of  freight  from 
the  west  that  prevail  to  the  terminal  points,  although  the 
distance  in  most  cases  is  much  less,  and  in  addition  on  re- 
shipment  must  pay  relatively  much  higher  local  rates  to 
Philadelphia,  New  York,  Baltimore  and  interior  points." 

All  the  defendants  have  filed  answers  except  the  Cen- 
tral Railroad  Company  of  New  Jersey,  the  Delaware  &  Hud- 
son Canal  Company,  the  Erie  Railroad  Company,  the 
Delaware,  Lackawanna  &  Western  Railroad  Company  and 
the  New  York,  Ontario  &  Western  Railroad  Company. 

These  answers,  while  not  expressly  admitting,  do  not 
deny  that  the  "Car  Service  Rules"  are  as  stated  in  the  com- 
plaint, but  they  allege  that  they  are  just  and  reasonable,  that 
they  are  not  in  violation  of  sections  i,  2,  3  or  4  of  the  Act 
to  regulate  commerce,  and  that  they  do  not  discriminate 


against  such  of  the  members  of  complainant  "as  are  located 
at  interior  points  in  Pennsylvania  upon  the  lines  of  the  de- 
fendants," because  the  circumstances  and  conditions  affect- 
ing the  loading  and  unloading  of  cars  at  the  terminal  points, 
Philadelphia,  New  York  and  Baltimore,  are  dissimilar  from 
those  affecting  such  loading  and  unloading  at  interior  points 
in  the  State;  and  that  they  do  not  discriminate  at  interior 
points  against  grain,  flour,  feed  and  hay  in  favor  of  coal, 
coke,  pig  iron,  or  iron  ore,  because  the  circumstances  and 
conditions  attending  the  loading  and  unloading  of  coal,  coke, 
pig  iron  or  iron  ore  at  interior  points  are  dissimilar  from 
those  attending  the  loading  or  unloading  of  grain  and  flour, 
feed  and  hay,  at  interior  points. 

The  Central  Pennsylvania  &  Western  Railroad  Com- 
pany, the  Erie  &  Wyoming  Valley  Railroad  Company  and 
the  Bangor  &  Portland  Railroad  Company,  each  aver  that 
their  roads  are  "situate  wholly  within  the  bounds  of  the 
State  of  Pennsylvania,  and  that  the  same  are  not  parts  of 
any  through  lines  connecting  other  roads  in  different  states 
of  the  United  States,"  and,  therefore,  are  not  subject  to  the 
provisions  of  the  Act  to  regulate  commerce.  Those  defend- 
ants also  deny  that  this  Commission  "has  any  authority  un- 
der the  Act  to  regulate  commerce  to  fix  and  establish  any 
period  within  which  the  members  of  complainant  may  load 
or  unload  cars  free  of  charge  upon  their  tracks." 

The  Delaware,  Susquehanna  &  Schuylkill  Railroad 
Company  avers  "that  its  line  of  railroad  is  wholly  within 
the  State  of  Pennsylvania,  and  if  any  part  of  the  property 
transported  by  it  is  interstate,  it  is  by  reason  of  such  prop- 
erty being  delivered  on  connecting  roads  to  be  transported 
to  points  outside  of  the  State  of  Pennsylvania." 

FACTS. 

We  find  the  facts,  relevant  to  the  issues  presented  by  the 
pleadings,  to  be  as  follows : 

First.  The  "Car  Service  Rules"  particularly  com- 
plained of  were  established  by  the  Philadelphia  Car  Service 
Association,  an  organization  composed  of  many  of  the  de- 
fendants and  of  other  railway  companies,  and  which  em- 


braces  in  its  operations  Philadelphia  and  territory  as  far  north 
as  "Tamaqua  on  the  Reading  Railroad  and  Sunbury  on  the 
Philadelphia  &  Erie  road,  south  to  the  Susquehanna  River, 
east  to  the  Delaware  River,  and  about  300  points  in  South 
Jersey." 

This  association  was  formed  September  i,  1890,  and  its 
principal  object,  as  stated  by  its  Secretary,  J.  E.  Challenger, 
is  to  see  that  cars  are  loaded  and  unloaded  "within  a  reason- 
able time."  It  appears  to  have  been  called  for  by  the  fact 
that  the  time  for  loading  and  unloading  at  Philadelphia  had 
been  indefinite  and  this  gave  opportunity  for  discrimination 
and  was  otherwise  unsatisfactory.  The  Association,  there- 
fore, soon  after  it  came  into  existence  adopted  rules  pre- 
scribing a  definite  time  for  loading  and  unloading  and  this 
time  as  originally  fixed,  for  Philadelphia  as  well  as  interior 
points,  was  48  hours. 

Notice  was  thereupon  given  the  Philadelphia  Commer- 
cial Exchange  that  on  and  after  a  certain  date  only  48  hours 
would  be  allowed  "to  unload  cars  after  delivery."  The 
members  of  the  Commercial  Exchange,  not  considering  this 
time  sufficient  as  to  grain,  flour,  feed  and  hay,  protested  and 
their  representative  had  several  meetings  with  representa- 
tives of  the  Car  Service  Association  for  the  purpose  of  pro- 
curing an  extension.  The  result  was  that  the  Car  Service 
Association  extended  the  time  on  these  commodities  to  96 
hours,  on  the  condition,  as  appears  from  the  testimony,  that 
no  allowance  was  to  be  made  on  account  of  weather.  This 
extension  took  place  60  or  90  days  after  the  formation  of 
the  Car  Service  Association,  or  about  November  1st  or  De- 
cember ist,  1890.  On  all  other  commodities  the  48  hour 
rule  remained  applicable  at  Philadelphia  as  well  as  at  interior 
points. 

The  96  hour  rule  or  allowance  of  "free  time"  applies 
"only  on  commodities  which  are  handled  by  the  Commercial 
Exchange  of  Philadelphia."  Practically  all  of  the  receivers 
of  and  dealers  in  grain  and  the  other  commodities  to  which 
that  rule  is  applied  at  Philadelphia  are  members  of  the  Com- 
mercial Exchange.  At  the  time  the  extension  to  96  hours 
was  conceded,  the  Commercial  Exchange  entered  into  an 
agreement  with  the  Car  Service  Association  that  demurrage, 


10 

or  the  charges  for  car  service  after  the  expiration  of  the  96 
hours  "free  time/'  should  be  promptly  paid.  They  were 
enabled  to  guarantee  payment  of  demurrage  because  they 
were  the  beneficiaries  of  the  96  hours  "free  time"  from 
whom  the  demurrage  would  be  due. 

The  printed  rules  of  the  Philadelphia  Car  Service  As- 
sociation filed  in  evidence  in  this  case  only  set  forth  the  rules 
making  the  48  hour  allowance  and  relating  thereto.  The 
special  allowance  at  Philadelphia  of  96  hours  and  the  rules 
relating  thereto  were  not  published  among  those  printed 
rules.  In  the  "Revised  Printed  Rules"  (effective  July  21, 
1898),  however,  of  the  Association,  the  rules  and  regula- 
tions relating  to  both  the  96  hour  allowance  and  to  the 
48  hour  allowance  are  given. 

Those  Revised  Rules,  so  far  as  pertinent  to  this  case,  are 
as  follows: 


CHARGES. 

RULE  i.  A  charge  of  one  dollar  per  car  per  day  or 
fraction  of  a  day  shall  be  made  for  car  and  track  service  on 
all  cars  not  unloaded  within  forty-eight  hours  after  arrival, 
not  including  Sundays  and  legal  holidays,  except  as  herein- 
after provided. 

The  charge  of  one  dollar  per  day  shall  not  be  made  on 
cars  loaded  with  the  following  commodities,  when  intended 
for  track  delivery,  within  the  limits  of  Philadelphia  and 
Camden,  until  forty-eight  hours  for  inspecting,  sampling  and 
selling  and  forty-eight  hours  additional  for  unloading  have 
elapsed:  Wheat,  shelled  and  ear  corn,  oats,  barley,  malt, 
rye,  mill-feed,  cerealine,  maizone,  malt  sprouts,  hay  and 
straw ;  also  perishable  fruits,  vegetables,  melons  and  berries, 
in  packages  or  bulk. 


RUI.K  2.  Forty-eight  hours  will  be  allowed  for  loading 
cars  on  team  or  private  tracks  (subject  to  Rule  13),  after 
the  expiration  of  which  time  a  charge  will  be  made  of  one 
dollar  per  car  per  day  or  fraction  of  a  day,  Sundays  and 
legal  holidays  excepted. 


II 


CARS  SUBJECT  TO  THE  RULES. 

RULE  5.  All  property  shipped  in  car  loads  or  in  less 
than  car  loads,  which  is  loaded  or  unloaded  by  shippers  or 
consignees  at  their  request,  or  is  so  required  by  custom  or  the 
Official  Classification,  shall  be  subject  to  the  car  and  track 
service  charges  of  the  forwarding  and  delivering  railroads, 
except  as  provided  in  Rule  9. 


CARS  EXEMPT. 

RULE  9.  Cars  containing  freight  in  transit  billed 
through  over  rail  or  water  lines,  not  held  for  orders  or  for 
disposition  by  the  shipper  or  consignee,  shipments  which 
are  to  be  unloaded  in  and  delivered  from  railroad  freight 
houses,  and  company  material,  will  not  be  subject  to  charge 
and  should  not  be  included  in  reports  to  the  Manager. 


RULES  FOR  COMPUTING  TIME. 

RULE  1 1.  On  cars  arriving  after  7  o'clock  A.  M.,  car 
and  track  service  will  be  charged  after  the  expiration  of 
forty-eight  hours  from  7  A.  M.  following.  On  cars  arriving 
after  12  o'clock  noon,  car  and  track  service  will  be  charged 
after  the  expiration  of  forty-eight  hours  from  the  noon  fol- 
lowing. 

RULE  12.  When  cars  are  delayed  after  arrival  beyond 
the  time  allowed  by  Rule  n,  on  account  of  failure  of  shipper 
or  consignee  to  give  prompt  notice  of  disposition,  the  time 
so  consumed  shall  be  considered  a  part  of  the  forty-eight 
hours  allowed  for  loading  or  unloading. 

RULE  13.  On  cars  consigned  direct  to  team  or  private 
tracks,  or  which  may  be  so  delivered  on  standing  or  advance 
orders  from  the  shipper  or  consignee,  car  and  track  service 
will  be  charged  after  the  expiration  of  forty-eight  hours 
from  the  time  such  cars  are  placed  on  the  tracks  designated. 
If  placed  after  7  A.  M.  the  forty-eight  hours  will  begin  at  7 
A.  M.  following  the  placing;  if  placed  after  12  o'clock  noon, 
the  forty-eight  hours  will  begin  at  noon  following  the 
placing.  > 


12 


RULE  14.  On  cars  not  consigned  to  team  or  private 
tracks,  the  forty-eight  hours  allowed  for  unloading  will  be- 
gin at  7  A.  M.  or  12  noon  following  arrival  (see  Rule  n), 
will  continue  until  order  is  given  by  shipper  or  consignee, 
and  begin  again  at  the  actual  hour  placed  according  to  such 
order,  except  that  cars  so  placed  between  the  hours  of  6  p.  M. 
and  7  A.  M.  will  be  regarded  as  placed  at  7  A.  M. 


PLACING  OF  CARS  ON  ARRIVAL. 

RULE  17.  Cars  containing  freight  to  be  delivered  on 
team  tracks  or  private  sidings  shall  be  delivered  on  the 
tracks  designated  on  the  way-bills  immediately  upon  ar- 
rival, or  as  soon  thereafter  as  the  yard  work  will  permit. 
The  time  consumed  in  placing  such  cars,  or  in  switching  cars 
for  which  directions  are  given  by  consignees  after  arrival, 
shall  not  be  included  in  the  time  allowed  for  unloading. 

RULE  1 8.  Delivery  of  cars  shall  be  considered  to  have 
been  effected  at  the  time  when  such  cars  have  been  placed 
on  recognized  or  designated  delivery  tracks,  or  if  such  track 
or  tracks  contain  cars  belonging  to  the  same  consignee, 
which  have  been  detained  over  forty-eight  hours,  when  the 
railroad  offering  the  cars  would  have  delivered  them  had 
the  condition  of  such  tracks  permitted. 

RULE  19.  The  delivery  of  cars  consigned  to  or  ordered 
to  private  tracks  shall  be  considered  to  have  been  effected, 
either  when  such  cars  have  been  placed  on  the  tracks  desig- 
nated, or,  if  such  track  or  tracks  be  full,  when  the  railroad 
offering  the  cars  would  have  made  delivery  had  the  condi- 
tion of  such  tracks  permitted. 


STORMY    WEATHER. 

RULE  26.  Agents  will  collect  car  and  track  service 
charges  occurring  under  the  rules  as  explained  herein,  re- 
gardless of  the  condition  of  the  highways  or  weather. 


CLAIMS. 

RULE  27.  Car  and  track  service  charges  collected  under 
these  rules  shall  not  be  refunded  except  on  the  written  au- 
thority of  the  Manager.  Claims  for  the  refunding  of  such 
charges  will  not  be  considered  unless  accompanied  by  the 
receipted  bills  for  the  amounts  paid. 

RULE  28.  Upon  receipt  of  claims  for  refunding  car  and 
track  service  charges  alleged  to  have  been  incurred  by  rea- 
son of  unfavorable  weather,  the  Manager  will  decide  each 
case  on  its  merits,  taking  into  consideration  the  nature  of  the 
freight  in  connection  with  the  condition  of  the  highways  and 
the  weather,  and  authorize  such  refund  as  in  his  judgment 
may  be  right  and  proper. 

Second.  There  is  applied  in  the  territory  of  the  Philadel- 
phia Car  Service  Association  a  rule  known  as  "the  24  hour 
monthly  average."  This  rule  was  not  published  among  the 
printed  rules  of  the  Association  at  the  date  of  the  hearing, 
but  among  the  "Revised  Printed  Rules,"  effective  July  21, 
1898,  there  is  the  following  rule,  entitled  "Monthly  24  hour 
Average  Agreement :" 

MONTHLY  TWENTY-FOUR  HOUR  AVERAGE  AGREEMENT. 

RULE  29.  The  Manager  is  authorized  to  make  con- 
tracts with  such  shippers  and  consignees  as  desire  to  enter 
into  a  monthly  twenty-four  hour  average  agreement.  Un- 
der this  contract  agents  will  render  reports  each  day  of  the 
cars  loaded  and  unloaded  by  those  operating  under  such 
monthly  contracts,  and  if  the  average  time  exceeds  twenty- 
four  hours  per  car  for  the  calendar  month,  the  fraction  in 
excess  will  be  charged  for  at  the  rate  of  one  dollar  per  car 
per  day.  This  privilege  is  open  to  all  shippers  and  con- 
signees, but  notice  must  be  given  the  Manager  expressing  a 
desire  to  enter  into  the  contract. 

The  testimony  at  the  hearing  was  that  under  the  Twen- 
ty-four hour  Monthly  Average  Rule,  "the  total  number 
of  cars  handled  during  the  month  by  any  one  firm  is  taken 
and  if  the  average  of  each  car  is  24  hours  or  less,  such 
charges  as  might  have  accrued  under  the  48  hour  rule  are 


14 

canceled."  For  example,  if  the  number  of  cars  handled  by 
a  single  firm  during  one  month  is  20,  and  10  of  those  cars 
are  unloaded  in  16  hours,  6  in  18  hours,  2  in  20  hours,  and 
2  in  78  hours,  making  a  total  of  464  hours  for  all,  the  aver- 
age per  car  would  be  23  hours  and  12  minutes,  and  under 
the  "24-hour  monthly  average  rule,"  the  charges  which 
would  have  accrued  under  the  48  hour  rule  on  the  2  cars 
unloaded  in  78  hours  would  be  canceled. 

This  monthly  average  rule  applies  on  all  classes  of  traf- 
fic and  at  all  points,  whether  interior  or  terminal.  Advan- 
tage of  it  is  taken  by  a  large  number  of  shippers.  Over  300 
firms  in  the  territory  of  the  Philadelphia  Car  Service  Asso- 
ciation are  "working  under  it"  The  beneficiaries  under  the 
96  hour  rule  at  Philadelphia  do  not,  however,  avail  them- 
selves of  it  to  any  extent. 

The  shipper  is  required  to  elect  in  advance  whether  or 
not  he  will  have  the  24  hour  monthly  average  applied  in  his 
case,  and  an  agreement  to  that  effect  has  to  be  made. 

Asher  Miner,  General  Manager  of  the  Miner-Hillis  Mill- 
ing Company  at  Wilkes-Barre,  Pennsylvania,  and  a  witness 
for  the  complainant,  testified  that  "a,  monthly  overage  of  48 
hours  per  car  would  be  satisfactory  to  himself  and  the  other 
millers  in  the  state." 


Third,  The  principal  grounds  assigned  by  the  witnesses 
for  allowing  96  hours  for  unloading  grain  in  Philadelphia, 
while  only  48  hours  are  allowed  at  interior  points,  are  : 

(a)  "That  90  percent  of  the  grain  coming  to  Phila- 
delphia has  to  be  sold  after  it  arrives,  and  it  is  necessary,  ac- 
cording to  the  rules  of  the  Commercial  Exchange  in  Phila- 
delphia, that  each  car  should  be  officially  inspected,  and 
sampled,  and  the  commodities  sold  upon  the  floor  of  the 
Philadelphia  Exchange ;  and  that  all  but  a  small  proportion 
of  grain  shipped  to  interior  points  from  the  West  does  not 
have  to  be  sold  after  arrival  but  it  is  consigned  directly  to 
millers  and  placed  at  once  on  their  tracks,  in  which  case  no 
sampling  and  inspecting  are  necessary." 


15 

(b)  "That  when  grain  arrives  at  Philadelphia,  it  is 
stopped  on  suburban  or  storage  tracks  and  notice  is  given 
of  its  arrival,  and  it  is  then,  in  pursuance  of  directions  from 
the  consignee,  moved  to  unloading  tracks ;  and  that  the  time 
consumed  in  inspection,  sale  and  other  details  necessary  to 
be  attended  to  before  cars  are  placed  upon  the  unloading 
tracks,  amounts  to  about  48  hours,    and    the    consignee  at 
Philadelphia  has  only  about  48  hours  in  which  to  unload 
after  the  cars  are  placed  on  the  unloading  track,  and  hence, 
the  96  hours  are  necessary  to  place  the  Philadelphia  con- 
signee  in   the   same   position   as   the  consignee   at  interior 
points.     The  96  hours  begin  to  run  from  the  time  notice  is 
given  that  the  shipment  has  reached  the  suburban  tracks." 

(c)  That  New  York,  Philadelphia  and  Baltimore  are 
large  "seaports,  as  well  as  ultimate  domestic  markets  and 
general  distributing  points,  and  as  such  attract  a  great  vol- 
ume of  commodities  either  for  export,  or  for  sale  and  distri- 
bution thereat  and  therefrom,"  and  that  at  these  seaports 
"sidings  and  railroads  are  congested  by  the  amount  of  traffic 
upon  them,  and  it  is  impossible  to  clear  the  tracks  and  han- 
dle the  traffic  in  the  time  which  would  be  ordinarily  required 
at  interior  points  where  there  is  less  traffic." 

As  to  the  mode  of  procedure  when  shipments  reach 
Philadelphia,  the  testimony  is  that  "the  cars  are  delivered  at 
outlying  points.  The  Philadelphia  Commercial  Exchange 
has  a  Chief  Inspector  under  the  control  of  the  grain  trade 
and  the  Commercial  Exchange,  and  he  has  his  deputy  in- 
spectors, a  number  of  them,  and  those  inspectors  are  detailed 
at  the  different  termini  of  the  railroads,  and  it  is  their  duty 
to  go  around  every  morning  or  during  the  day.  They  start 
in  the  morning,  but  do  not  sometimes  go  through  until  late 
in  the  day,  because  they  have  difficulty  in  the  first  place  in 
locating  the  cars.  These  cars  are  mixed  in  very  often  with 
cars  of  other  merchandise.  When  they  find  the  cars  they 
procure  samples.  The  next  day,  which  is  practically  24 
hours  after  arrival  and  after  notification  of  arrival  has  been 
given,  those  samples  are  brought  on  Change  and  disposition 
has  to  be  made  of  them  and  orders  given  to  the  various  rail- 
road companies.  That  is  done  probably  about  noon.  Then, 
it  almost  invariably  requires  24  hours — sometimes  double 
that  time — before  the  grain  can  be  delivered  at  a  private 
warehouse  to  be  unloaded  or  on  a  delivery  track." 


i6 


A  small  percentage  of  the  grain  shipped  to  Philadelphia 
is  "consigned  flat"  and  not  subject  to  inspection.  This  has, 
however,  the  benefit  of  the  96-hour  rule.  The  requirement 
tof  inspection  applies  principally,  if  not  exclusively,  to  grain. 

It  appears  that  at  interior  points  "as  a  rule  cars  are 
placed  for  delivery  either  on  private  sidings  in  connection 
with  warehouse  or  mills  or  places  to  unload,"  and  that  there 
is  in  such  cases  "greater  capacity  for  quick  delivery  at  in- 
terior points  at  the  place  of  discharge  than  there  is  at  Phila- 
delphia at  the  place  of  discharge." 


As  before  stated,  no  allowance  on  account  of  bad 
weather  is  made  at  Philadelphia  on  "96-hour  commodities." 
At  interior  points  and  at  Philadelphia  such  allowance,  ac- 
cording to  the  evidence,  is  made  on  "48-hour  commodities." 
(No  note  of  this  distinction  appears  in  the  "Revised  Rules," 
effective  July  21,  1898.)  It  is  stated  by  the  manager  of  the 
Philadelphia  Car  Service  Association,  that  "in  adjusting 
claims  on  account  of  weather  refunds  are  frequently  made 
for  bad  weather,  which  occurs  after  the  lapse  of  the  48 
hours."  Under  the  Baltimore  &  Washington  Car  Service 
Association,  allowance  is  made  for  bad  weather  occurring 
during  the  "free  time,"  but  not  after  the  expiration  of  that 
time. 

The  rule  for  Reckoning  Time  (Rule  n  of  Rules  of 
Philadelphia  Car  Service  Association,  hereinbefore  set 
forth),  namely,  that  the  48  hours  "free  time"  shall  begin  to 
run  from  7  A.  M.  or  12  M.  of  the  day  following  arrival  as 
provided  in  that  rule,  does  not,  according  to  the  testimony 
at  the  hearing  and  under  the  "Revised  Rules,"  effective 
July  21,  1898,  apply  under  the  96  hour  rule  at  Philadelphia. 

On  the  other  hand,  while  a  comparatively  small  amount 
of  grain  is  consigned  to  interior  points  to  be  sold  after  its 
arrival,  when  it  is  so  consigned,  it  has  to  be  sampled  and  in- 
spected by  the  consignee  himself  and  then  sold  before  placed 
for  delivery  or  unloading,  and  it  is  claimed  that  this  busi- 
ness to  interior  points  would  be  much  larger  "if  there  were 
not  the  discrimination  in  the  car  service  rules  as  between 
interior  points  and  the  terminal  points,  Philadelphia,  New 
York  and  Baltimore."  In  many  cases,  also,  grain  snipped 


17 

to  interior  points  comes  "without  any  certificate  as  to  grade," 
or  "with  draft  and  subject  to  inspection  before  draft  is  paid." 
All  such  grain  has  to  be  inspected.  In  this  and  other  cases, 
inspection  has  to  be  made  at  interior  points.  It  also  appears 
that  grain,  as  well  as  coal,  coke,  pig  iron  and  iron  ore,  comes 
to  interior  points  at  times  in  train  loads  and  that  these  en- 
tire train  loads  have  to  be  unloaded  within  the  "free  time." 

There  is  general  complaint  on  the  part  of  the  interior 
millers,  members  of  complainant's  Association,  that  the  Car 
Service  Rules  applicable  to  interior  points  are  oppressive  and 
result  in  some  financial  loss. 


Fourth.  The  Car  Service  Rules  appear  to  be  enforcedand 
demurrage,  or  charges  made  for  the  detention  of  cars  and 
occupation  of  tracks  after  the  expiration  of  the  "free  time," 
is  collected  by  an  officer  of  the  Car  Service  Association 
promptly  and,  so  far  as  the  proof  shows,  without  discrimin- 
ation. 

The  demurrage  on  traffic  of  all  classes  collected  by  the 
Philadelphia  Car  Service  Association  amounts  annually  to 
about  $50,000,  of  which  from  60  to  70  per  cent  is  collected 
in  Philadelphia.  This  would  be  about  $32,500  at  Philadel- 
and  about  $17,500  at  interior  points.  The  bulk  of  the  traf- 
fic at  Philadelphia  consists  of  other  commodities  than  grain 
and  the  other  traffic  subject  to  the  96  hour  rule,  and  the 
greater  part  of  the  demurrage  collected  is  on  such  other 
traffic.  This  may  also  be  true  as  to  interior  points.  The 
demurrage  under  the  48  hour  rule  is  collected  subject  to  a 
refund  for  what  are  deemed  good  and  sufficient  reasons,  par- 
ticularly weather.  (As  before  said,  no  weather  allowance 
is  made  on  the  96-hour  commodities  at  Philadelphia.)  About 
20  per  cent  of  the  demurrage  is  refunded  because,  for  the 
most  part,  of  weather  conditions.  This  leaves  a  net  annual 
demurrage  collected  at  interior  points  on  all  traffic  of 
$14,000. 

For  the  year  1897  demurrage  was  collected  in  the  ter- 
ritory of  the  Northeastern  Pennsylvania  Car  Service  Asso- 
ciation to  the  amount  of  $30,000  on  traffic  of  all  classes,  of 
which  $10,000  was  refunded.  The  General  Manager  of  the 
Miner-Hillis  Milling  Company  at  Wilkes-Barre,  Pennsylva- 


i8 

nia  (the  largest  interior  milling  company  in  the  State),  tes- 
tified that  during  the  year  1897  there  were  from  1500  to 
2000  cars  received  by  that  company,  that  the  demurrage  paid 
on  those  cars  was  $50  and  that  $25  of  that  was  refunded. 
He  further  stated  that  his  company  was  "unusually  well 
equipped  in  comparison  with  other  interior  mills  for  hand- 
ling cars,"  and  that  they  often  had  to  unload  at  night  to 
avoid  demurrage  charges. 

According  to  the  statistics  of  the  Philadelphia  Car  Ser- 
vice Association,  about  97  or  98  per  cent  of  the  cars  are  un- 
loaded at  interior  points  within  the  "free  time,"  and  about  80 
per  cent  in  large  cities  like  Philadelphia.  In  other  words,  a 
larger  percentage  of  cars  are  unloaded  on  time  at  interior 
points  than  are  unloaded  on  time  at  Philadelphia.  The  same 
is  true  as  between  Baltimore  and  interior  points  in  the  terri- 
tory of  the  Baltimore  &  Washington  Car  Service  Associa- 
tion. 


Fifth.  The  grain  receiver  in  Philadelphia  "has  48  hours 
from  the  time  he  receives  notice  of  its  arrival  in  which  to 
get  the  result  of  the  inspection  and  to  order  the  car,  and 
then  has  48  hours  additional  in  which  to  make  a  disposition 
of  it,  and  if  he  orders  it  into  the  grain  depot  or  the  Twen- 
tieth Street  Elevator,  he  has  10  days'  storage  in  addition  to 
which  the  company  unloads  the  cars."  For  the  service  of 
unloading,  however,  the  consignee  pays  ^  cent  per  bushel^ 
which  follows  the  grain  and  adds  that  much  to  its  cost.  The 
testimony  is  that  the  y2  cent  paid  for  unloading  "gives"  the 
10  days'  storage. 

Flour  is  said  to  be  "warehouse  freight"  and  not  subject 
to  Car  Service  Rules.  It  will  be  observed  that  the  96  hour 
rule  at  Philadelphia  as  set  forth  in  Rule  I  of  "Revised 
Rules,"  effective  July  21,  1898,  does  not  name  flour  as  one 
of  the  commodities  to  which  it  is  applicable,  but  only  "wheat, 
shelled  and  ground  corn,  oats,  barley,  malt,  rye,  mill-feed, 
cerealines,  maizone,  malt  sprouts,  hay  and  straw,  and  also 
perishable  fruits,  vegetables,  melons  and  berries,  in  pack- 
ages or  bulk." 

When  grain  and  other  96  hour  commodities  are  shipped 
to  Philadelphia  for  export  they  are  not  subject  to  the  Car 


Service  Rules,  but  are  considered  through  shipment  via 
Philadelphia  to  foreign  ports.  The  same  is  true  as  to  all 
"freight  in  transit  billed  through  over  rail  or  water  lines." 
(Rule,  9,  Revised  Rules.) 


Sixth.  Car  Service  Associations  of  Railroad  Companies, 
similar  in  object  to  the  Philadelphia  Car  Service  Associa- 
tion, exist  throughout  the  United  States.  There  is  evidence 
in  this  case,  introduced  by  defendants,  relating  to  the  Car 
Service  Rules  and  regulations  of  three  other  Car  Service 
Associations  besides  the  Philadelphia  Car  Service  Associa- 
tion, to  wit,  the  Northeastern^  Pennsylvania  Car  Service  As- 
sociation, the  Baltimore  &  Washington  Car  Service  Associa- 
tion, and  the  New  York  &  New  Jersey  Car  Service  Associa- 
tion. 

The  Northeastern  Pennsylvania  Car  Service  Associa- 
tion embraces  in  its  operations  territory  in  the  State  of 
Pennsylvania  described  in  the  printed  rules  of  that  Associa- 
tion, as  follows : 

"All  that  part  of  the  State  of  Pennsylvania  bounded  on 
the  north  and  east  by  the  state  line,  and  on  the  south  and 
west  by  a  line  drawn  from  the  Delaware  River  through  Eas- 
ton,  Bethlehem,  Allentown,  Slatington,  Mauch  Chunk,  Ta- 
maqua,  New  Boston,  Frackville,  Gordon,  Kneass,  Sunbury, 
Northumberland,  Lewisburg,  Milton,  Williamsport,  Jersey 
Shore  to  Lockhaven,  and  from  Williamsport  to  Fasset.  All 
stations  on  the  line  of  the  south  and  west  boundary  to  be  in- 
cluded except  Tamaqua,  New  Boston,  Frackville  and  Gor- 
don, which  are  included  in  the  territory  of  the  Philadelphia 
Car  Service  Association." 


All  this  territory  appears  to  be  interior  as  distinguished 
from  sea-coast  territory  and  the  48-hour  rule  is  applied  by 
the  Northeastern  Pennsylvania  Car  Service  Association 
throughout  this  territory.  The  rules  and  regulations  of  that 
Association  are  similar  to,  if  not  identical  with,  the  printed 
rules  and  regulations  of  the  Philadelphia  Car  Service  Asso- 
ciation, relating  to  the  48-hour  rule,  heretofore  set  forth. 
The  96-hour  rule  is  not  applied  at  any  points  in  the  territory 
of  the  Northeastern  Association. 


20 

The  Baltimore  &  Washington  Car  Service  Association 
covers,  as  stated  by  its  manager  (A.  L.  Gardner),  "the 
southern  tier  of  counties  of  Pennsylvania,  the  State  of 
Maryland,  the  District  of  Columbia,  and  the  upper  part  of 
the  State  of  West  Virginia,  through  Wheeling  and  Parkers- 
burg." 

This  witness  testifies  that  "the  rules  of  the  Baltimore  & 
Washington  Car  Service  Association,  with  respect  to  grain, 
feed  and  hay,  are  substantially  the  same  as  the  rules  of  the 
Philadelphia  Car  Service  Association,  and  that  the  regula- 
tions applied  as  between  Philadelphia  and  interior  points  are 
substantially  the  same  as  those  applied  between  Baltimore 
and  interior  points  with  one  exception,"  that  allowance  is 
made  on  account  of  weather  during  "free  time"  but  not 
thereafter. 

The  rule  as  set  forth  in  the  printed  rules  of  the  Balti- 
more &  Washington  Car  Service  Association,  effective  Jan- 
uary i,  1894,  is  as  follows: 


CHARGES. 

"i.  A  charge  of  One  Dollar  ($1.00)  per  car  per  day, 
or  fraction  thereof,  shall  be  made  for  delay  of  cars  and  use 
of  track  on  all  cars  not  unloaded  within  forty-eight  (48) 
hours  after  arrival,  not  including  Sundays  or  legal  holidays, 
except  as  hereinafter  provided.  An  additional  forty-eight 
(48)  hours  shall  be  allowed  (in  Baltimore  only)  for  inspect- 
ing, sampling,  and  selling  Hay  and  Straw,  Bran,  Mill  Feed, 
and  Ear  Corn,  in  bulk,  also  on  Fruit  and  Vegetables  in  bulk, 
and  one  hundred  and  twenty  hours  on  grain  arriving  by  the 
Western  Maryland  R.  R.  for  city  or  track  delivery  in  Balti- 
more. No  charge  will  be  made  on  freight  in  transit,  or 
freight  for  trans-shipment  to  Water  Lines. 

Forty-eight  (48)  hours  will  be  allowed  for  loading  cars 
on  all  car-load  delivery  tracks  or  private  sidings,  after  the 
expiration  of  which  time  a  charge  will  be  made  of  One  Dol- 
lar ($1.00)  per  car  per  day,  or  fraction  thereof,  Sundays  and 
legal  holidays  excepted." 


21 

F.  E.  Morse,  Manager  of  the  New  York  &  New  Jer- 
sey Car  Service  Association,  states  that  the  territory  covered 
by  that  Association  "is  the  State  of  New  Jersey  and  all 
south  of  a  line  from  Deposit  to  Kingston,  touching  a  part  of 
New  York  State."  He  further  states,  "the  48-hour  rule  ap- 
plies all  through  that  territory  on  everything." 

The  48-hour  rule  as  set  forth  in  the  printed  rules  of  that 
Association,  effective  November  I,  1892,  is  as  follows: 

"i.  A  charge  of  one  dollar  ($1.00)  per  car  per  day  or 
fraction  thereof,  shall  be  made  for  delay  of  cars  and  use  of 
track,  on  all  cars  not  unloaded  within  forty-eight  (48)  hours 
after  arrival,  not  including  Sundays  or  legal  holidays,  except 
as  hereinafter  provided. 

Forty-eight  (48)  hours  will  be  allowed  for  loading  cars 
on  car-load  delivery  tracks  or  private  sidings,  after  the  ex- 
piration of  which  time  a  charge  will  be  made  of  one  dollar 
($1.00)  per  car  per  day  or  fraction  thereof,  Sundays  and 
legal  holidays  excepted." 

In  New  York  City  grain  is  divided  into  two  classes, 
graded  grain  and  ungraded  grain.  Graded  grain  is  deliv- 
ered as  fast  as  possible  by  the  roads  to  the  elevators  and  the 
cars  are  released  as  soon  as  the  grain  can  be  put  into  the 
elevators.  Ungraded  grain  for  track  delivery  has  72  hours 
"free  time,"  at  the  end  of  which  the  roads  have  the  option 
of  putting  it  in  the  elevator  or  allowing  demurrage  to  ac- 
cumulate. The  receivers  generally  prefer  to  pay  the  de- 
murrage of  $1.00  per  day  rather  than  to  pay  the  charges  for 
having  the  grain  put  in  the  elevator  and  taken  out  and  for 
storage  while  it  is  in  the  elevator.  There  is  no  substantial 
dissimilarity  of  conditions  shown  by  the  evidence  as  between 
New  York  and  Philadelphia. 

The  rules  for  reckoning  time  under  the  Northeastern 
Pennsylvania  Car  Service  Association,  the  Washington  & 
Baltimore  Car  Service  Association  and  the  New  York  & 
New  Jersey  Car  Service  Association,  are  substantially  the 
same  as  Rule  II.  of  the  Phialdelphia  Car  Service  Association 
hereinbefore  set  forth,  namely,  that  the  "free  time"  shall 
begin  to  run  from  7  A.  M.  or  12  M.  of  the  day  following 
arrival  as  provided  in  that  rule. 


22 


Flour  does  not  come  under  the  Car  Service  rules  of 
either  the  New  York  &  New  Jersey  or  Baltimore  &  Wash- 
ington Associations.  It  goes  direct  to  the  flour  warehouses. 


Seventh.  It  was  testified  in  this  case  that  the  p6-hourrule 
prevailed  at  interior  points  in  New  England.  On  examina- 
tion of  the  printed  rules  filed  with  this  commission  by  the 
Connecticut  Car  Service  Association,  the  Rhode  Island  Car 
Service  Association  and  the  Massachusetts  &  New  Hamp- 
shire Car  Service  Association,  we  find  this  to  be  the  case 
in  the  territories  covered  by  those  associations. 

The  territory  embraced  in  the  Connecticut  Car  Service 
Association  includes  "all  freight  stations  and  sidings  in  the 
State  of  Connecticut  owned  or  operated  by  its  members,"  to 
wit,  the  Central  Vermont  Railroad  Company,  the  New  York 
&  New  England  Railroad  Company,  the  New  York,  New 
Haven  &  Hartford  Railroad  Company,  the  Philadelphia, 
Reading  &  New  England  Railroad  Company,  and  the  She- 
paug,  Litchfield  &  Northern  Railroad  Company. 

The  territory  of  the  Rhode  Island  Car  Service  Asso- 
ciation embraces  "all  freight  stations  and  sidings  in  the  State 
of  Rhode  Island  owned  or  operated  by  its  members,"  to  wit, 
the  New  York,  New  Haven  &  Hartford  Railroad  and  the 
New  York  and  New  England  Railroad. 

The  territory  of  the  Massachusetts  &  New  Hampshire 
Car  Service  Association  includes  "all  freight  stations  and 
sidings  in  the  states  of  Massachusetts  and  New  Hampshire 
owned  or  operated  by  its  members,"  to  wit,  the  Concord  & 
Montreal  Railroad,  the  Boston  &  Albany  Railroad  Company, 
the  Boston  &  Maine  Railroad,  the  Fitchburg  Railroad  Com- 
pany, the  New  York  &  New  England  Railroad  Company, 
the  New  York,  New  Haven  &  Hartford  Railroad  Company, 
the  Union  Freight  Railroad,  the  Maine  Central  Railroad  and 
the  Grand  Trunk  Railway. 


Eighth.  The  rules  of  the  Northeastern  Pennsylvania  Car 
Service  Association  provide  for  an  allowance  of  72  hours  for 
unloading  coal,  coke,  pig  iron  and  iron  ore. 


23 

% 

Seventy-two  hours  for  unloading"  these  commodities 
is  also  allowed  at  interior  points  in  the  territory  of  the  Phila- 
delphia Car  Service  Association,  but  in  Philadelphia  the  48- 
hour  rule  is  applied  to  coal  and  coke. 

The  72-hour  rule  prevails  on  grain  at  New  York  and 
under  the  New  York  &  New  Jersey  Car  Service  Association. 

The  reasons  assigned  for  allowing  coal,  coke,  pig  iron 
and  iron  ore  24  hours  in  addition  to  the  48  hours  allowed 
traffic  in  general  in  the  territory  of  the  Northeastern  Penn- 
sylvania Car  service  Association  are,  as  stated  by  the  sec- 
retary of  that  Association,  ihat  coal  shipments  are  "made 
and  received  at  points  of  unloading  irregularly,  and  grouped 
in  large  shipments,"  and  that  the  "material  allowed  the  ad- 
ditional 24  hours  is  shipped  in  open  cars  of  less  value  than 
the  house  car,  available  only  for  rough  material  and  rarely 
used  for  return  shipments,  and  as  to  pig  iron  and  iron  ore, 
they  are  received  at  the  furnaces  by  the  train  load,  delivered 
into  yards  where  it  is  physically  necessary  to  sometimes 
shove  up  the  earlier  arrivals  to  make  room  for  the  later  ones, 
the  result  being  that  the  unloader  is  unloading  a  great  many 
cars  in  one  day,  and  finds  himself  delayed  in  getting  at  older 
arrivals  of  several  days."  On  the  other  hand,  carloads  of 
coal,  coke  and  iron  ore  can  by  dumping  be  unloaded  prob- 
ably in  less  time  than  carloads  of  grain,  feed  or  hay. 

It  is  testified  that  the  72  hours  allowed  for  unloading 
coal,  coke,  pig  iron  and  iron  ore,  are  not  for  unloading  a 
single  car  but  a  number  of  cars  or  train  load. 


Ninth.  The  48-hour  rule  is  stated  by  the  witnesses  to  be 
"the  basis"  or  general  rule  throughout  the  country,  to  which 
the  rules  of  certain  associations,  to  which  we  have  referred, 
allowing  96  hours  and  72  hours  in  certain  cases,  are  excep- 
tions. 

CONCLUSIONS. 

First.  We  will  first  dispose  of  the  plea  of  the  Central 
Pennsylvania  &  Western  Railroad  Company,  the  Erie  & 
Wyoming  Valley  Railroad  Company,  and  the  Bangor  & 
Portland  Railway  Company,  that  their  roads  are  "situate 
wholly  within  the  bounds  of  the  State  of  Pennsylvania,  and 


24 

that  the  same  are  not  parts  of  any  through  lines  connecting 
other  roads  in  different  states  of  the  United  States,"  and  the 
plea  of  the  Delaware,  Susquehanna  &  Schuylkill  Railroad 
Company,  "that  its  line  of  railroad  is  wholly  within  the 
State  of  Pennsylvania  and  if  any  part  of  the  property  trans- 
ported by  it  is  interstate,  it  is  by  reason  of  such  property 
being-  delivered  on  connecting  roads  to  be  transported  to 
points  outside  the  State  of  Pennsylvania." 

It  is  well  settled  that  a  railway  company  whose  road  is 
wholly  within  the  bounds  of  a  single  state,  "when  it  volun- 
tarily engages  as  a  common  carrier  in  interstate  commerce 
by  making  an  arrangement  for  a  continuous  carriage  or 
shipment  of  goods  and  merchandise,  is  subject,  so  far  as 
such  traffic  is  concerned,  to  the  regulations  and  provisions 
of  the  Act  to  regulate  commerce." 

Interstate  Commerce  Commission  vs.  Detroit,  G.  H.  & 
M.  R.  Co.  167  U.  S.  642,  42  L.  ed.  309,  17  Sup.  Ct. 
Rep.  986. 

Cincinnati,  N.  O.  &  T.  P.  R.  Co.  vs.  Interstate  Com- 
merce Commission,  162  U.  S.  184,  40  L.  ed.  935,  5 
Inters.  Com.  Rep.  391,  16  Sup.  Ct.  Rep.  700. 

The  Daniel  Ball,  10  Wall.  5^5,  566,  sub  nom.  The 
Daniel  Ball  vs.  United  States,  19  L.  ed.  1002. 


If  it  be  true,  as  alleged  by  the  three  defendants  first 
named,  that  "their  roads  are  situate  wholly  within  the 
bounds  of  the  State  of  Pennsylvania,  and  the  same  are  not 
parts  of  any  through  lines  connecting  other  roads  in  differ- 
ent states  of  the  United  States,"  and  they  do  not,  in  fact, 
participate,  as  links  in  chains  of  carriers,  in  the  transporta- 
tion of  traffic  from  points  outside  the  State  of  Pennsylvania 
to  points  within  that  State  or  from  points  within  to  points 
outside,  they  are  not  subject  to  the  provisions  of  the  Act  to 
regulate  commerce.  If,  also,  the  line  of  the  Delaware,  Sus- 
quehanna &  Schuylkill  Railroad  Company  is,  as  alleged  by 
it,  "wholly  within  the  State  of  Pennsylvania"  and  the  only 
interstate  traffic  transported  by  it  is  traffic  delivered  "to 
connecting  roads  to  be  transported  to  points  outside  of  the 
State  of  Pennsylvania,"  then  it  is  only  subject  to  the  provi- 


25 

sions  of  the  law  in  respect  to  the  traffic  from  points  within 
to  points  outside  the  state  in  which  alone  it  participates.  It 
appears,  however,  that  the  grain  of  interior  Pennsylvania 
goes,  not  only  to  Philadelphia,  but  largely  outside  the  State 
to  Baltimore  and  New  York.  As  to  this  traffic  from  within 
the  State  to  the  latter  cities,  the  road,  if  it  participates  in  its 
transportation,  is  subject  to  the  provisions  of  the  law. 

There  was  no  evidence  introduced  bearing  upon  the 
matters  of  fact  alleged  in  these  pleas.  Of  course,  if  these 
defendants  do  not  participate  in  the  interstate  traffic  in- 
volved, they  will  not  be  affected  by  any  order  which  the 
Commission  may  make. 

Second.  It  is  alleged  in  the  complaint  that  the  members 
of  complainant  "are  compelled  to  pay  the  same  rates  of 
freight  from  the  west  that  prevail  at  the  terminal  points,  al- 
though the  distance  in  most  cases  is  much  less,  and  in  addi- 
tion on  reshipment,  must  pay  relatively  much  higher  local 
rates  to  Philadelphia,  New  York,  Baltimore  and  interior 
points."  No  testimony  was  introduced  at  the  hearing  relat- 
ing to  these  allegations  and  nothing  has  been  said  in  argu- 
ment in  reference  thereto  either  at  the  hearing  or  in  the 
briefs  subsequently  filed. 


Third.  The  complainant  avers  that  the  "Car  Service 
Rules"  of  the  defendants  prescribing  the  time  to  be  allowed 
for  the  unloading  of  cars  at  interior  points  in  the  territory 
of  the  Philadelphia  Car  Service  Association,  are  in  violation 
of  Sections  i,  2,  3  and  4  of  the  Act  to  regulate  commerce. 
These  were  the  charges  insisted  upon  at  the  hearing  and  to 
which  the  investigation  was  confined. 

In  Wight  vs.  United  States,  167  U.  S.  518,  42  L.  ed. 
259,  I7  Sup.  Ct.  Rep.  822,  the  Supreme  Court  held  that  "it 
was  the  purpose  of  the  section  [2]  to  enforce  equality  be- 
tween shippers,  and  it  prohibits  any  rebate  or  other  device 
by  which  two  shippers,  shipping  over  the  same  line,  the  same 
distance,  under  the  same  circumstances  of  carriage,  are 
compelled  to  pay  different  prices  therefor." 

It  is  admitted  there  is  no  discrimination  against  mem- 
bers of  complainant's  association,  or  anyone,  "in  the  appli- 
cation" of  the  96-hour  Car  Service  Rule  at  Philadelphia — in 


other  words,  for  example,  one  shipper  to,  or  consignee  at, 
Philadelphia,  is  not  allowed  96  hours  free  time  while  it  is 
denied  to  another.  It  is  true  the  proof  shows  that  practic- 
ally the  96-hour  rule  benefits  only  the  members  of  the  Com- 
mercial Exchange  of  Philadelphia,  but  this  is  because  of  the 
fact,  that  that  Exchange  embraces  in  its  membership  virtu- 
ally all  the  receivers  of  or  dealers  in  grain  and  the  other 
commodities  to  which  the  96-hour  rule  is  applicable;  and 
the  testimony  indicates  that  if  there  were  such  receivers  or 
dealers  outside  the  Commercial  Exchange,  they  would  re- 
ceive the  benefit  of  the  rule.  There  is  not,  therefore,  shown 
any  violation  of  section  2  in  the  administration  of  the  96- 
hour  rule. 

Cattle  Raisers'  Asso.  vs.  Fort  Worth  &  D.  C.  R.  Co.  7 
/.  C.  C.  Rep.  513. 

Wight  vs.  United  States,  167  U.  S.  518,  42  L.  ed.  259, 
17  Sup.  Ct.  Rep.  822. 


Neither  is  there  any  violation  of  section  2  in  the  facts, 
that  on  all  other  commodities  besides  the  "96-hour  commo- 
dities" only  48  hours  "free  time"  is  allowed  at  Philadelphia, 
and  on  coal,  coke,  pig  iron  and  iron  ore  72  hours  are  allowed 
at  interior  points,  while  only  48  hours  are  allowed  on-  other 
traffic  at  interior  points.  Section  2  prohibits  unjust  discrim- 
ination in  "the  transportation  of  a  like  kind  of  traffic"  and 
does  not  apply  where  the  traffic  is  of  different  kinds  or 
classes  not  competitive  with  each  other. 

We  are,  also,  of  the  opinion  that  the  rule  of  Section  4, 
forbidding  the  charging  or  receiving  "any  greater  compen- 
sation in  the  aggregate  for  the  transportation  of  a  like  kind 
of  property  under  substantially  similar  circumstances  and 
conditions,  for  a  shorter  than  for  a  longer  distance  over  the 
same  line  in  the  same  direction,  the  shorter  being  included 
in  the  longer  distance,"  has  no  application  to  this  case.  That 
rule  is  based  on  distance  and  relates  to  the  actual  transporta- 
tion charges,  and  not  to  demurrage  charges,  which  are  in  the 
nature  of  charges  for  storage  in  the  cars  of  the  carrier.  In- 
terstate Commerce  Commission  vs.  Detroit,  G.  H.  &  M.  R. 
Co.  167  U.  S.  644,  42  L.  ed.  309,  17  Sup.  Ct.  Rep.  986.  The 
actual  transportation  is  at  an  end  and  the  goods  delivered  by 


27 

the  carrier  when  the  car  is  placed  on  the  unloading  track  or 
other  proper  place  for  unloading  by  the  consignee.  The 
functions  of  the  carrier,  "to  receive,  transport  and  deliver," 
are  then  fully  discharged.  American  Warehousemen's  Asso. 
vs.  Illinois  C.  R.  Co.  7  I.  C.  C.  Rep.  589. 

If,  however,  such  demurrage  charges  when  added  to 
transportation  rates,  result  in  greater  aggregate  charges  in 
certain  cases  than  in  other  cases  involving  longer  hauls,  this 
may  constitute  undue  preference  as  between  different  local- 
ities under  section  3. 

Counsel  for  the  Delaware  &  Hudson  Canal  Company 
in  a  printed  brief  claims,  that,  in  the  case  supra  of  the  Inter- 
state Commerce  Commission  vs.  Detroit,  G.  H.  &  M.  R.  Co. 
167  U.  S.  633,  42  L.  ed.  306,  17  Sup.  Ct.  Rep.  986,  the  Su- 
preme Court  held  that  "it  was  not  an  unlawful  discrimin- 
ation for  a  carrier  to  furnish  free  cartage  at  one  place  and  to 
decline  to  furnish  the  same  at  another  place  at  some  dis- 
tance," and  that  "under  this  authority  it  must  be  held  that  no 
discrimination  arises  from  the  fact  that  the  time  during 
which  free  storage  in  the  carriers'  cars  is  allowed  varies  in 
one  place  from  that  allowed  in  another."  In  this  counsel 
is  in  error.  The  Supreme  Court  placed  its  decision  distinct- 
ly upon  the  ground,  that  the  only  question  before  it  was, 
whether  the  furnishing  of  free  cartage  at  Grand  Rapids 
when  it  was  not  furnished  at  Ionia,  constituted  a  violation  of 
the  rule  of  Section  4,  and  held  that  under  the  facts  of  the 
case  it  was  not  a  violation  of  that  rule.  The  court,  after  call- 
ing attention  to  the  fact  that  the  question  whether  there  was 
an  undue  preference  under  Section  3  had  been  withdrawn 
from  the  consideration  of  the  Court,  says  : 

"It  may  be  that  it  was  open  for  the  Commission  to  en- 
tertain a  complaint  of  the  Ionia  merchants  that  such  a  course 
of  conduct  was  in  conflict  with  sections  2  and  3  of  the  act; 
but,  as  we  have  seen,  such  questions,  if  they  really  arose  in 
the  proceedings  before  the  Commission  and  in  the  circuit 
court,  have  been  withdrawn  from  our  consideration  in  this 
appeal  from  the  decree  of  the  circuit  court  of  appeals." 

Witnesses  for  the  complainant  testify  that  in  their  opin- 
ion the  allowance  of  96  hours'  "free  time"  at  Philadelphia, 
and  of  72  hours  on  coal,  coke,  pig  iron  and  iron  ore  at  inter- 


28 

ior  points,  was  not  excessive,  but  only  reasonable.  The  con- 
tention on  the  part  of  complainant  is  solely  that  the  48  hours' 
"free  time"  allowed  at  interior  points  is  unreasonably  small. 
If  the  time  allowed  at  Philadelphia,  or  other  terminals,  is 
reasonable  and  that  allowed  at  interior  points  is  unreason- 
ably small,  then  an  undue  prejudice  to  interior  points,  in  vio- 
lation of  section  3  of  the  law,  might  result.  It  is  testified 
that  the  fact  that  only  48  hours  is  allowed  at  interior  points, 
while  96  are  allowed  at  Philadelphia  and  other  terminals,  has 
diverted  grain  and  other  traffic  covered  by  the  96-hour  rule 
from  the  former  to  the  latter. 


Fourth.  Furthermore,  if  demurrage  charges  are  made 
to  commence  before  the  expiration  of  a  reasonable  time  for 
loading  or  unloading,  this  may  be  a  violation  of  the  provision 
of  section  I,  which  directs,  "that  charges  made  for  any  ser- 
vice rendered  or  to  be  rendered  in  the  transportation  of  pas- 
sengers or  property  or  in  connection  therewith,  or  for  the 
receiving  and  delivering,  storage  or  handling  of  such  prop- 
erty, shall  be  reasonable  and  just."  The  charge  of  de- 
murrage, before  a  reasonable  time  for  loading  or  unloading 
has  elapsed,  would,  so  far  as  that  charge  covers  time  which 
should  be  embraced  in  a  reasonable  time,  be  an  unjust  or  un- 
reasonable charge  for  a  "service  rendered  in  connection  with 
the  transportation  of  property"  or  "for  the  storage  or  hand- 
ling" of  such  property.  For  example,  if  96  hours  were  a 
reasonable  time  at  interior  points,  then  the  exaction  of  $1.00 
a  day,  or  $2.00  for  the  two  days,  following  the  expiration  of 
the  48  hours'  free  time  now  allowed,  would  be  an  unjust  and 
unreasonable  charge. 


Fifth.  It  is  admitted  on  the  part  of  complainant,  not 
only  that  the  allowance  of  96  hours  on  grain  and  certain 
other  products  at  Philadelphia  and  of  72  hours  on  coal,  coke, 
iron  ore  and  pig  iron,  at  interior  points,  is  reasonable,  but, 
also,  that  the  charge  of  $1.00  a  day  for  the  detention  of  cars 
beyond  a  reasonable  time  for  loading  or  unloading  is  a  just 
and  proper  charge.  The  question  raised  is  simply  whether 
the  time  allowed  at  interior  points  is  reasonable.  This  is  the 
question  under  section  3  as  well  as  under  section  i,  because, 
as  before  stated,  it  being  admitted  that  the  time  allowed  at 
Philadelphia  is  reasonable,  the  undue  prejudice  under  sec- 


29 

tion  3  would  result  from  the  fact,  that  while  a  reasonable 
time  is  allowed  at  Philadelphia,  the  time  allowed  at  interior 
points  is  not  reasonable. 

Sixth.  While  reference  is  made  in  the  complaint  to  the 
greater  time  allowed  at  Baltimore  and  New  York  as  well  as 
at  Philadelphia  than  is  allowed  at  interior  points  in  Pennsyl- 
vania, Mr.  Welsh,  who  represented  the  complainant  at  the 
hearing,  said  that  "the  real  contention  was  with  reference  to 
the  differential  conditions  between  Philadelphia  and  interior 
points,"  that  the  "complaint  was  confined  to  the  State  of 
Pennsylvania,"  and  that  reference  was  made  in  the  com- 
plaint to  the  rules  at  New  York  and  Baltimore  "simply  as  a 
matter  of  comparison  and  to  emphasize,  if  possible,  the  dis- 
crimination which  was  made  at  interior  points  in  Pennsyl- 
vania." While,  also,  the  complaint  relates  to  loading  as  well 
as  unloading,  it  was  admitted  on  the  part  of  the  complain- 
ant, that  the  chief  ground  of  complaint  was  the  rules  in 
reference  to  unloading,  and  the  testimony  relates  almost  ex- 
clusively to  those  rules.  In  fact,  on  an  examination  of  the 
rule  (Rule  I  of  the  Philadelphia  Car  Service  Association), 
it  will  be  seen  that  the  48  hours  additional  time  on  grain  and 
certain  other  commodities  provided  for  therein,  is  expressly 
stated  to  be  for  "unloading,"  the  language  of  the  rule  being 
"48  hours  additional  for  unloading" 

Seventh.  The  gravamen  of  the  complaint,  which  we  will 
now  consider,  is  the  reasonableness  of  the  48  hours  allowed 
for  unloading  at  interior  points. 

There  appear  from  the  rules  to  be  two  distinct  cases  to 
which  the  48-hour  allowance  of  time  is  applicable: 

First,  where  cars  are  "consigned  direct  to  team  or  pri- 
vate tracks,  or  may  be  so  delivered  on  standing  or  advance 
orders  from  the  shipper  or  consignee."  In  such  cases  no 
time  after  arrival  is  consumed  in  procuring  direction  from 
the  consignee  as  to  where  the  cars  shall  be  placed  for  un- 
loading, and,  if  the  cars  are  so  "placed  after  7  A.  M.,  the  48 
hours  will  begin  at  7  A.  M.  of  the  day  following  the  placing, 
and,  if  placed  after  12  M.,  the  48  hours  will  begin  at  12  M. 
of  the  day  following  the  plating."  (Rule  13.) 


30 

Second,  where  ''cars  are  not  consigned  to  team  or  pri- 
vate tracks"  and  are  not  deliverable  at  previously  designated 
places.  In  such  cases,  the  consignee  after  the  arrival  of  the 
car  has  to  designate  the  place  of  unloading  and  this  will  con- 
sume more  or  less  time,  and  the  48  hours  for  unloading  "be- 
gins at  7  A.  M.  or  12  M.  following  arrival,  and  continues  un- 
til order  for  placing  is  given  by  the  shipper  or  consignee, 
and  begins  again  at  the  actual  hour  placed  according  to  such 
order,  except  that  cars  so  placed  between  the  hours  of  6 
p.  M.  and  7  A.  M.  will  be  regarded  as  placed  at  7  A.  M." 
(Rule  14.) 

Under  the  96-hour  rule  applicable  at  Philadelphia,  "48 
hours  is  allowed  for  inspecting,  sampling  and  selling"  alone, 
and  48  hours  additional  for  unloading.  Witnesses  for  the 
defendants  all  testify  that  the  96  hours  is  necessary  to  place 
Philadelphia  on  an  equality  with  interior  points — that  is, 
that  the  96  hours  is  necessary  to  give  Philadelphia  fully  48 
hours  for  unloading  alone.  The  claim  that  this  simply  places 
Philadelphia  on  an  equality  with  interior  points  is  based 
upon  the  assumption  that  under  the  48-hour  rule  and  regula- 
tions in  relation  thereto  applicable  at  interior  points,  con- 
signees at  interior  points  have  fully  48  hours  for  unloading. 
In  the  first  case  above  mentioned,  under  rule  13,  where  cars 
are  consigned  direct  to  team  or  private  tracks  or  to  some 
designated  point  for  unloading,  and  the  48  hours  begins  at 
7  A.  M.  or  12  M.  of  the  day  following  the  day  of  the  placing 
of  the  cars  for  unloading,  there  may  be  48  hours  left  for  the 
process  of  unloading,  provided  prompt  notice  is  given  of  the 
placing.  In  the  second  case,  however,  under  rule  14,  where 
the  cars  are  not  consigned  to  team  or  private  tracks  and  the 
place  for  unloading  is  not  designated  prior  to  arrival,  and 
the  48  hours  begins  at  7  A.  M.  or  12  M.  following  arrival  and 
before  order  for  placing  is  given,  there  will,  as  the  cars  can- 
not be  unloaded  until  placed,  be  less  than  48  hours  left  for 
the  process  of  unloading.  In  the  latter  case,  therefore,  if 
not  in  the  former,  the  96-hour  rule  at  Philadelphia  would  not 
simply  place  Philadelphia  on  an  equality  with  interior  points 
but  would  give  a  longer  time  for  the  actual  unloading  at 
Philadelphia  than  for  the  actual  unloading  at  interior  points. 

The  testimony  is  that  fully  48  hours  are  required  for  the 
actual  unloading  at  Philadelphia,  and,  so  far  as  the  process 


3* 

of  unloading  is  concerned,  there  is  no  reason  for  holding 
that  a  less  time  will  be  required  at  interior  points. 

It  may  be  that  at  Philadelphia  more  time  is  required  for 
inspecting,  sampling  and  selling  than  at  interior  points,  be- 
cause the  sampling  and  inspecting  is  done  in  Philadelphia 
by  an  official  inspector  and  his  deputies,  who  are  required  to 
perform  these  services  daily  for  a  large  number  of  ship- 
ments, while  at  interior  points  the  sampling  and  inspection 
are  done  by  each  consignee  himself  and  it  is  not  probable 
that  he  will  have  many  inspections  on  his  hands  at  once. 
Moreover,  at  Philadelphia  the  sampling  and  inspection  may 
be  delaved  by  the  difficulty  in  promptly  finding  the  cars  on 
the  crowded  or  "congested"  tracks — the  traffic  to  Philadel- 
phia being  much  larger  than  at  interior  points — and,  after 
inspection,  a  report  thereof  is  made  to  the  Commercial  Ex- 
change. 

It  appears  that  at  interior  points  cars  as  a  rule  are 
placed  for  delivery  or  unloading  on  "private  sidings  in  con- 
nection with  warehouses  and  mills"  and  that  there  is  in  such 
cases  "greater  capacity  for  quick  delivery  at  the  place  of  dis- 
charge at  interior  points  than  at  Philadelphia,"  and  also  that 
the  bulk  of  the  grain  shipped  to  interior  points  is  shipped 
"sold,"  and  does  not  have  to  be  sampled,  inspected  and  sold 
after  arrival.  The  traffic  when  sold  before  arrival,  however, 
often  comes  to  interior  points  "without  certificate  as  to 
grade"  or  "with  draft  and  subject  to  inspection  before  draft 
is  paid."  In  the  latter  cases,  as  well  as  where  the  traffic  ar- 
rives unsold,  inspection  is  necessary.  Some  traffic  is  shipped 
to  interior  points  unsold  and  that  has  to  be  both  inspected 
and  sold  after  arrival. 

On  the  other  hand,  cars  loaded  with  commodities  sub- 
ject to  the  96-hour  rule  at  Philadelphia  are  "intended  for 
track  delivery"  (Rule  i),  and  all  but  a  small  percentage  of 
such  commodities  have  to  be  sampled,  inspected  and  sold 
after  arrival.  Where,  however,  they  are  shipped  "sold"  and 
do  not  require  sampling,  inspection  and  sale  after  arrival, 
they  are  given  the  benefit  of  the  96-hour  rule. 

We  are  of  the  opinion  that  a  distinction  should  be  made 
between  shipments  of  grain  and  other  commodities  which 
are  already  sold  before  arrival,  and  which  do  not  have  to  be 
sampled,  inspected  and  sold  after  arrival,  and  which  are  con- 


32 

signed  to  designated  places  for  unloading,  and  shipments 
which  have  to  be  sampled,  inspected  and  sold,  and  the  place 
for  unloading  which  has  to  be  designated,  after  arrival.  It 
is  true  the  latter  are  but  a  small  percentage  of  the  shipments 
to  interior  points,  but  it  is  claimed  that,  if  a  longer  time  was 
allowed  for  unloading,  that  class  of  business  in  the  interior 
would  be  encouraged  and  increased. 

Interior  points  in  Pennsylvania  can  be  placed  on  an 
equality  with  Philadelphia  only  by  rules  allowing  48  hours 
net  for  the  actual  unloading.  In  order  to  accomplish  this,  a 
reasonable  definite  period  of  time  should  be  allowed  in  the 
interior,  as  at  Philadelphia,  for  attending  to  all  the  matters 
necessarily  preliminary  to  the  placing  of  the  cars  for  un- 
loading. It  may  be  that,  for  reasons  heretofore  stated,  as 
much  time  as  that  allowed  for  these  preliminaries  at  Phila- 
delphia is  not  necessary  in  the  interior. 

In*  four  of  the  New  England  States,  Connecticut,  Rhode 
Island,  Massachusetts  and  New  Hampshire,  the  rules  of  the 
Car  Service  Association  allow  96  hours  at  interior  points, 
and  general  complaint  is  made  throughout  Pennsylvania  of 
the  48-hour  allowance  as  being  insufficient  and  "oppressive." 
The  testimony  also  shows  that  at  one  interior  point,  Wilkes- 
Barre,  Pa.,  where  there  are  exceptional  facilities  for  unload- 
ing, it  has  to  be  done  at  times  after  dark  in  order  not  to  ex- 
ceed the  48-hour  limit. 

On  the  face  of  the  rules,  "refunds"  on  account  of 
weather  are  allowable  without  discrimination,  but  the  man- 
ager of  the  Philadelphia  Car  Service  Association  testified, 
that  such  refunds  are  only  made  under  the  48-hour  rule  and 
not  under  the  o/S-hour  rule,  and  that  at  the  time  the  latter 
was  granted,  the  receivers  of  grain  at  Philadelphia  waived 
any  allowance  on  account  of  weather.  If  96  hours  are  only  a 
reasonable  time  at  Philadelphia,  and  48  hours  a  reasonable 
time  at  interior  points,  it  is  difficult  to  conceive  of  any  valid 
reason  why  weather  should  not  be  taken  into  consideration 
in  the  former  as  well  as  in  the  latter  case.  From  the  distinc- 
tion made  it  is  a  legitimate  inference,  that  the  96-hour  allow- 
ance was  considered  liberal  and  sufficient  to  cover  delays  on 
account  of  weather,  while  that  of  48  hours  was  not  so  con- 
sidered. If  this  be  not  the  basis  of  the  distinction,  then  in- 
justice is  being  done  Philadelphia. 


33 


Eighth.  As  we  have  seen,  certain  defendants  in  their 
answers  deny  that  this  Commission  "has  any  authority  under 
the  act  to  regulate  commerce  to  fix  and  establish  a  period 
within  which  the  members  of  complainant  may  load  or  un- 
load cars  free  of  charge  upon  their  tracks." 


In  Interstate  Commerce  Commission  vs.  Cincinnati,  N. 
0.  6-  T.  P.  R.  Co.  167  U.  S.  479,  42  L.  ed.  243,  17  Sup.  Ct. 
Rep.  896,  the  Supreme  Court  held  that  the  Commission  had 
no  power  to  prescribe  rates,  "maximum,  minimum  or  abso- 
lute," as  a  mode  of  enforcing  the  provision  of  section  I  of 
the  law  requiring  all  rate  charges  to  be  just  and  reasonable. 
This  was  based  upon  the  ground,  principally,  that  the  Act 
to  regulate  commerce  does  not  expressly  delegate  to  the 
Commission  the  power  to  prescribe  rates.  (Cattle  Raisers' 
Asso.  vs.  Port  Worth  &  D.  C.  R.  Co.  7  I.  C.  C.  Rep.  552.) 
The  law  does  not  expressly  confer  upon  the  Commission 
power  to  prescribe  the  time  which  shall  be  allowed  for  load- 
ing or  unloading  cars,  and,  if  the  absence  of  authority  ex- 
pressly conferred  is  a  valid  reason  for  denying  power  in  the 
Commission  to  prescribe  rates,  it  would  seem  that  such  ab- 
sence of  express  authorization  would  preclude  the  exercise 
of  the  former  power. 


Section  15  of  the  Act  to  regulate  commerce,  however, 
does  in  express  terms  provide  that  the  commission  shall, 
upon  finding  a  carrier  in  violation  of  any  of  the  provisions 
of  the  Act,  order  it  to  cease  and  desist  therefrom.  In  the 
language  of  the  circuit  court  in  Interstate  Commerce  Com- 
mission vs.  Bast  Tennessee,  V .  &  G.  R.  Co.  85  Fed.  Rep. 
no,  the  Commission  may  order  the  carriers  to  "desist  from 
the  continuance  of  an  unlawful  practice."  The  power  to 
prohibit  an  unlawful  practice  or  to  forbid  ''the  continuance" 
thereof,  necessarily  involves  the  power  to  determine  and  de- 
clare the  unlawfulness  of  the  practice.  The  Commission 
may,  therefore,  after  investigation,  find  a  particular  rate  to 
be  unlawful  and  prohibit  the  exaction  of  that  rate,  or  find 
the  time  allowed  for  loading  or  unloading  unlawful,  or,  in 
other  words,  unreasonably  small,  and  forbid  the  charging  of 
demurrage  at  the  expiration  of  that  time  and  before  the  ex- 
piration of  a  reasonable  time. 


34 

We  find  that  48  hours  is  an  unreasonably  small  allow- 
ance of  time  for  unloading  where  any  portion  of  it  has  to  be 
consumed  in  attending  to  the  preliminaries  necessarily  ante- 
cedent to  the  actual  process  of  unloading,  and  it  is  ordered 
that  as  to  grain,  flour,  hay  and  feed  consigned  to  and  de- 
liverable at  interior  points  in  the  territory  of  the  Philadel- 
phia Car  Service  Association,  the  defendants  cease  and  de- 
sist from  charging  demurrage  until  the  expiration  of  a  rea- 
sonable time  for  unloading  after  the  cars  have  been  placed 
for  unloading  and  notice  of  such  placing  has  been  given  the 
consignee  or  other  proper  party.  Our  opinion  is  that  48 
hours  will  be  a  reasonable  time  for  the  actual  unloading. 
This  is  the  time  allowed  at  Philadelphia  and  by  making  that 
allowance  at  interior  points  after  the  cars  have  been  placed 
and  due  notice  given,  will  put  such  points  on  an  equality 
with  Philadelphia. 

If  by  reason  of  any  fault  on  the  part  of  the  consignee, 
the  carriers  are  unable  to  place  the  cars  promptly  for  unload- 
ing, the  time  so  lost  may  be  deducted  from  the  48  hours,  and 
to  this  end  suitable  rules  may  be  adopted — the  object  and 
intent  of  our  order  being  to  secure  48  hours  net  for  unload- 
ing where  unnecessary  delay  in  placing  the  cars  for  that  pur- 
pose is  not  caused  by  the  default  of  the  consignee. 


Ninth.  In  respect  to  grain  and  flour,  it  is  claimed,  that 
at  the  expiration  of  the  96  hours  they  may  be  ordered  to  the 
grain  depot,  warehouse  or  elevator,  where  they  are  unloaded 
by  the  roads  and  given  10  days'  storage.  The  roads  how- 
ever, charge  y2  cent  per  bushel  for  unloading  and  the  stor- 
age is  incidental  to  that.  It  does  not  appear  from  the  evi- 
dence whether  or  not  facilities  for  storage,  or  the  necessity 
therefor,  exist  at  interior  points  to  the  same  extent  as  at  ter- 
minal seaports  like  Philadelphia,  New  York  and  Baltimore. 
Inasmuch  as  all  but  a  small  percentage  of  these  commodi- 
ties shipped  to  Philadelphia  have  to  be  sold  or  disposed  of 
after  arrival,  while  the  reverse  is  the  case  at  interior  points, 
the  presumption  is,  that  the  necessity  for  storage  does  not 
exist  to  the  same  extent  in  the  interior  as  at  Philadelphia. 

By  section  i  of  the  law,  storage  is  named  as  a  "service 
in  connection"  with  transportation,  and  the  charges  therefor 
are  required  to  be  "reasonable  and  just."  In  American 


35 

Warehousemen  s  Asso.  vs.  Illinois  C.  R.  Co.  7  /.  C.  C.  Rep. 
591,  we  held  that  the  schedules  of  rates  required  by  section 
6  of  the  law  to  be  printed,  posted,  and  filed  with  the  Com- 
mission, should  state  among  other  terminal  charges  the  rules 
and  regulations,  if  any,  of  the  carrier  in  relation  to  storage ; 
and  the  Commission,  February  8,  1898,  issued  a  general 
order  directing  "that  all  carriers  subject  to  the  Act  shall 
plainly  indicate  upon  the  schedules  published  and  filed  with 
the  Commission  under  the  provisions  of  the  sixth  section 
.  .  .  what  storage  in  stations,  warehouses  or  cars  will  be 
permitted,  stating  the  length  of  time,  the  character  of  the 
storage,  the  service  rendered  in  connection  therewith,  and 
all  the  terms  and  conditions  upon  which  the  same  will  be 
granted."  This  order  became  effective  April  i,  1898,  and  at 
that  date  the  carriers  issued  a  general  Circular  providing 
that  "property  unloaded  in  the  railroad  stations  or  ware- 
houses must  be  removed  within  24  hours  after  arrival  and  if 
not  so  removed  will,  at  the  option  of  the  carrier,  either  be 
removed  and  stored  at  a  public  warehouse  at  owner's  cost 
and  risk,  and  there  held  subject  to  lien  for  freight  and 
charges,  or  will  be  retained  in  carriers'  station  or  warehouse 
under  the  same  conditions  and  subject  to  like  charges  for 
storage  as  prevail  at  public  warehouses,  except  as  may  be 
provided  by  local  regulations  at  destination  as  made  by 
public  warehouses  or  delivering  carrier."  In  the  schedule 
of  rates  of  the  carriers  filed  with  the  Commission  under 
section  6  we  find  reference  to  this  general  Circular  allowing 
24  hours'  storage  after  arrival.  A  special  allowance  at 
Philadelphia  of  10  days'  storage  on  grain  and  flour  is  not 
mentioned  either  in  the  general  Circular  or  in  the  schedules 
of  rates  of  the  defendants.  If  such  storage  is  given,  the  or- 
der of  the  Commission  has  not  in  this  respect  been  complied 
with  and  the  carriers  are  liable  to  be  proceeded  against 
under  section  16  of  the  law  for  "neglecting  to  obey  or  per- 
form a  lawful  order  of  the  Commission." 


In  American  Warehousemen's  Asso.  vs.  Illinois  C.  R. 
Co.  7  /.  C.  C.  Rep.  591,  supra,  we  held,  on  the  authority  of 
the  decision  of  the  Supreme  Court  in  Interstate  Commerce 
Commission  vs.  Detroit,  G.  H.  &  M.  R.  Co.  167  U.  S.  633, 
42  L.  ed.  306,  17  Sup.  Ct.  Rep.  986.  that  the  Commission 
had  authority  to  make  the  order  in  question.  (7  L  C.  C. 
Rep.  p.  592.) 


36 

DECISION  OF  THE  QUARTERMASTER-GENERAL  OF  THE  U.  S. 
ARMY  ON  DEMURRAGE  CHARGED  ON  CARS  CONTAINING 
GOVERNMENT  FREIGHT  CONSIGNED  TO  COMMISSARY 
FORT  APACHE,  CARE  DEPOT  QUARTERMASTER,  HOL- 
BROOK, ARIZONA. 

April  19,  1902. 
GENERAL  M.  I.  LUDDINGTON,  U.  S.  A., 

Quartermaster  General,  Washington,  D.  C. 
SIR: 

For  some  time  past  the  Santa  Fe  Pacific  Railroad  Com- 
pany has  been  embarrassed  in  its  accounts  by  reason  of  the 
refusal  of  the  Quartermaster's  agent  at  Holbrook,  Arizona, 
and  other  points,  to  recognize  the  right  of  the  Company  for 
a  charge  of  $1.00  per  day  demurrage  on  each  car  detained 
beyond  forty-eight  hours,  exclusive  of  Sundays  and  legal 
holidays,  after  6  p.  M.  of  the  day  upon  which  the  car  is 
placed  ready  for  unloading  and  notice  given  the  consignee. 

We  file  herewith  a  copy  of  communication  dated  March 
9th,  from  the  Quartermaster's  agent  at  Holbrook,  wherein 
he  refuses  to  recognize  the  Company's  bills  covering  de- 
murrage charges,  giving  as  his  reason  therefor  that  the 
Santa  Fe  Pacific  Railroad  Company  is  a  land  grant  road,  for 
the  use  of  the  Government  of  the  United  States,  free  from 
toll  or  other  charges  except  50  per  cent,  of  tariff  rates. 

Manifestly  the  question  is  not  one  affecting  the  obliga- 
tions of  this  road  to  the  United  States  Government  as  a  land 
grant  road.  The  only  question  is  as  to  the  liability  of  the 
government  for  car  service  and  whether  such  car  service  can 
be  properly  considered  as  a  part  of  the  transportation 
charge. 

In  submitting  this  matter  to  your  office  for  its  consider- 
ation, we  advise  that  the  Car  Service  Bureau  is  an  organiza- 
tion whose  purpose  is  to  expedite -the  handling  of  cars  and 
enable  the  railroads  to  apply  their  equipment  more  promptly 
and  push  forward  the  general  business  of  the  public,  and  to 
that  end  the  rule  is  stated  that  each  car  detained  beyond 
forty-eight  hours,  exclusive  of  Sundays  and  legal  holidays, 
after  6  p.  M.  of  the  day  upon  which  the  car  is  placed  ready 


37 

for  unloading,  and  notice  given  the  consignee,  shall  be 
charged  for  at  the  rate  of  $1.00  per  day.  This  car  service 
arrangement  is  general  throughout  the  entire  country,  and 
the  end  to  be  subserved  of  keeping  the  equipment  available 
to  the  fullest  possible  extent  for  prompt  and  expeditious 
forwarding  of  freight  will  be  recognized  as  wholly  meri- 
torious. 

The  account  now  under  consideration  has  been  rendered 
by  the  Car  Service  to  this  Company  for  the  sum  of  $10.00, 
comprised  of  three  items  as  shown  thereon.  We  respect- 
fully submit  that  this  car  service  charge  cannot  in  any  sense 
be  a  part  of  the  transportation  charges  proper,  as  the  con- 
signment is  carried  to  its  destination,  the  consignees  notified 
of  its  arrival  and  allowed  forty-eight  hours  from  notice, 
within  which  to  make  disposition  of  the  goods.  This  period 
of  forty-eight  hours  has  of  course  been  decided  upon  as  a 
reasonable  time,  and  the  car  'service  charges  which  accrue 
thereafter  are  charges  made  against  the  general  public  and 
one  which  should  be  recognized  by  the  Government  itself, 
such  charges  are  for  an  additional  service  which  the  Com- 
pany undertakes  for  the  convenience  of  the  consignee. 

We  respectfully  request  that  the  Quartermaster's  agent 
at  Holbrook  may  be  notified  that  thi3  car  service  charge  is 
not  one  connected  with  the  transportation  charge,  nor  af- 
fected by  the  land  grant  obligation  of  this  road,  and  that  if 
it  is  a  charge  which  is  made  against  the  general  public  it  is 
proper  and  he  should  certify  to  the  Company's  account  for 
the  same  when  satisfied  of  its  correctness. 

Very  respectfully, 

(Signed)  BRITTON  &  GRAY, 
Attorneys  Santa  Pe  Pacific  R.  R.  Co. 

INDORSEMENT. 

April  24,  1903. 
(No.  43) 

Respectfully  referred  by  direction  of  the  Quartermaster 
General  to  the  Chief  Quartermaster,  Denver,  Colorado,  for 


38 

investigation  and  report.  If  cars  are  necessarily  detained 
as  stated  in  within  letter,  such  detention  should  be  paid  for 
by  the  government  at  the  rates  charged  the  general  public, 
and  the  Quartermaster's  agent  at  Holbrook  should  be  in- 
structed to  furnish  the  railroad  evidence  of  indebtedness 
requested. 

(Signed)  CHAS.  BIRD, 
Depot  Quartermaster  General,  U.  S.  A. 


WAR  DEPARTMENT. 
QUARTERMASTER-GENERAL'S 

Washington,  May  31,  1902. 
MESSRS.  BRITTON  &  GRAY, 

Attorneys,  1419  "F"  Street,  Washington,  D.  C. 

GENTLEMEN  : 

I  am  directed  by  the  Quartermaster-General  to  inform 
you,  in  reply  to  your  letter  of  the  I9th  ultimo,  relative  to  de- 
murrage at  Holbrook,  Arizona,  that  the  Quartermaster's 
agent  at  that  point  has  been  instructed  to  comply  with  the 
rules  of  the  carriers  governing  in  cases  of  demurrage.  The 
account  for  $10.00  referred  to  in  above-mentioned  letter  is 
now  being  adjudicated  for  payment  by  the  Chief  Quarter- 
master, Denver,  Colo. 

It  is  thought  that  there  will  be  no  further  friction  in 
this  direction. 

Respectfully, 

(Signed)  CHAS.  BIRD, 
Brigadier-General,  U.  S.  A. 


39 


CIRCUIT  COURT,  GRUNDY  COUNTY,  IOWA. 


UNREPORTED. 


C.  &  N.  W.  RY. 

vs. 
TOWN  SEND  &  MERRILL  Co. 


During  December,  1901,  the  C.  &  N.  W.  Railway  set 
two  cars  of  lumber,  one  car  of  lath,  and  one  car  of  coal  on 
team  track  at  Dike,  Iowa,  consigned  Townsend  &  Merrill 
Co.  As  the  cars  were  not  released  within  the  time  allowed 
free  under  Car  Service  Rules,  bills  for  $27.00  Car  Service 
were  presented,  which  consignees  declined  to  pay;  hence 
this  action. 

Defendant  failed  to  appear,  and  judgment  was,  on  two 
different  dates,  rendered  by  default,  defendant  praying  later 
for  a  re-hearing,  claiming  some  misunderstanding.  The 
case  was  last  called  for  trial  February  10,  1903,  when  de- 
fendant, instead  of  contesting  the  question  as  to  the  right  of 
the  railroad  company  to  recover  for  Car  Service  charges, 
conceded  such  right  by  consenting  to  the  entering  of  a  judg- 
ment against  them  of  $27.00,  the  full  amount  sued  for,  to- 
gether with  the  Court  costs. 


CLARK  QUARTERLY  COURT,  WINCHESTER,  KY. 
MARCH  31,  1903. 


UNRHPORTBD. 

E.  H.  DOYLE 

vs. 
LOUISVILLE  &  NASHVILLE  R.  R.  Co. 


Writ  of  Delivery,  HON.  J.  H.  EVANS,  Presiding. 


FACTS. 

Plaintiff  received  two  carloads  of  coal  at  Winchester, 
which  were  placed  for  unloading  March  2d,  and  plaintiff 
notified  before  noon  of  that  day  that  they  were  ready  for 
unloading;  that  free  time  would  begin  on  the  same  at  12 
o'clock  and  would  expire  48  hours  from  that  date.  Also, 
that  $1.00  per  day  or  fraction  thereof  would  be  charged  for 
each  day  the  cars  were  detained  after  the  free  time  had  ex- 
pired. 

The  Bill  of  Lading  also  made  the  same  stipulation  as  to 
free  time,  and  stated  that  a  reasonable  amount  would  be 
charged  for  each  day  the  cars  were  detained  after  the  ex- 
piration of  48  hours. 

The  plaintiff  unloaded  one  car  within  the  free  time,  but 
not  having  finished  unloading  the  second  car  by  I  o'clock 
p.  M.,  on  March  5th,  Agent  of  the  defendant  presented  a 
bill  for  $2.00  car  service  and  demanded  payment  of  same. 
Payment  being  refused,  plaintiff  was  stopped  from  unload- 
ing by  the  Agent.  At  this  time  there  remained  in  the  car 
about  one  hundred  bushels  of  coal. 


The  plaintiff  then  sued  out  a  writ  for  the  immediate  de- 
livery of  the  coal  remaining  in  the  car,  and  the  same  was 
taken  charge  of  by  the  Sheriff  and  remained  in  his  charge 
in  the  car  for  two  days,  at  the  end  of  which  time  it  was 
turned  over  to  the  plaintiff. 


PROCEEDINGS    UNDER    THE    WRIT. 

In  response  to  the  writ  the  defendant  asserted  a  claim 
to  a  lien  on  the  coal  to  secure  the  demurrage  for  the  time  the 
car  was  detained  by  the  plaintiff  and  the  Sheriff  under  the 
plaintiff's  writ,  amounting  to  $4.00  m  all,  and  relied  upon 
the  condition  in  the  Bill  of  Lading  fixing  48  hours  as  the 
free  time  for  unloading,  and  upon  $1.00  per  day  as  a  reason- 
able charge  for  detention  after  the  free  time  expired. 

The  plaintiff  claimed : 

First.  That  he  was  not  bound  by  the  terms  of  the  Bill 
of  Lading,  because  he  had  never  received  the  same  before 
the  institution  of  the  suit,  and  that  he  had  no  notice  of  its 
contents. 

Second.  That  the  defendant  could  not  rely  upon  the 
condition  in  the  Bill  of  Lading  as  to  the  free  time  allowed, 
because  it  had  placed  two  cars  for  unloading  on  the  same 
day. 

Third.  That  the  condition  in  the  Bill  of  Lading  fixing 
48  hours  as  the  free  time  allowed  was  unjust,  unreasonable 
aad  contrary  to  public  policy,  in  that  the  time  was  insuffi- 
cient and  that  cars  were  of  different  capacities. 

Fourth.  That  $1.00  per  day  was  an  unreasonable  and 
excessive  charge. 

Fifth.  That  the  notice  of  the  arrival  of  the  cars,  the 
payment  of  the  freight  thereon,  and  the  placing  of  the  same 
for  unloading  before  the  plaintiff  had  received  the  Bill  of 
Lading  constituted  a  new  contract,  relieving  plaintiff  of  the 
conditions  of  the  Bill  of  Lading. 


42 

The  Court  held : 

First.  That  the  plaintiff  was  bound  by  the  terms  of  the 
Bill  of  Lading,  and  that  it  was  his  contract. 

Second.  That  it  was  not  competent  to  introduce  any 
testimony  with  reference  to  the  first  car,  which  was  unloaded 
within  the  48  hours. 

Third.  That  the  plaintiff  was  bound  by  the  terms  of 
the  Bill  of  Lading  unless  he  could  show  as  to  the  48  hours 
that  said  condition  was  an  unjust  requirement  and  could  not 
be  reasonably  complied  with  by  dealers. 

Fourth.  That  the  notice  of  the  arrival  of  the  cars,  the 
payment  of  the  freight  thereon,  the  placing  of  the  same  for 
unloading  before  the  plaintiff  received  the  Bill  of  Lading 
did  not  of  itself  constitute  a  new  contract,  and  that  the 
plaintiff  should  prove  an  express  contract  in  lieu  of  the  Bill 
of  Lading  if  any  was  so  made. 


The  case  was  tried  before  Judge  Evans  and  a  jury. 
Dwight  Jewett,  Esq.,  appeared  for  the  plaintiff,  and  Messrs. 
Pendleton  and  Bush  for  the  defendant. 

Upon  hearing  the  evidence  and  arguments  of  counsel, 
and  being  instructed  by  the  Court,  the  jury  returned  a  ver- 
dict for  the  defendant,  fixing  the  amount  at  $4.00  and  costs ; 
whereupon  the  Court  ordered  the  plaintiff  to  return  the  coal 
taken  under  the  writ,  or  in  lieu  thereof  to  pay  the  defendant 
the  value  of  its  interest  therein — to  wit,  $4.00  and  costs. 


O.  G.  FETTER,  Superintendent. 


43 


STATE  OF  MISSISSIPPI  SUPREME  COURT. 
OCTOBER  TERM,  A.  D.  1903. 


82  Miss.,  7/0. 
55  South.  Rep.  193. 

HON.  ALBERT  H.  WHITFIELD,  Chief  Justice. 

HON.  S.  S.  CALHOUN  and  JEFF  TRULY,  Associate  Jus- 
tices. 


On  the    1 6th   day  of   November,   1903,  the  following 
opinion  was  rendered  and  delivered  by  the  Court : 

NEW  ORLEANS  &  NORTH  EASTERN  RAILROAD  COMPANY 

vs. 
A.  H.  GEORGE  &  COMPANY. 

TRULY,  /. 

Reversed  and  remanded. 


NEW  ORLEANS  &  NORTH  EASTERN  RAILROAD  COMPANY 

vs. 
A.  H.  GEORGE  &  COMPANY. 

STATEMENT  OF  FACTS. 

On  the  3d  day  of  February,  1902,  A.  H.  George,  doing 
business  as  A.  H.  George  &  Company,  instituted  this  suit  in 
Replevin  against  the  New  Orleans  and  North  Eastern  Rail- 
road Company  for  eight-six  tons  of  cotton  seed  hulls  con- 
tained in  five  box  cars  in  the  possession  of  defendant  Com- 
pany, charging  that  the  same  was  wrongfully  detained  by 
the  Railroad  Company.  Upon  the  trial  the  Railroad  Com- 


44 

pany  contended  that  the  plaintiff  was  not  entitled  to  the  pos- 
session of  the  hulls  because  of  failure  on  his  part  to  pay 
certain  "demurrage"  charges  which  the  Railroad  Company 
was  entitled  to  under  certain  rules  of  the  "Alabama  Car 
Service  Association"  and  the  Mississippi  Railroad  Com- 
mission. The  Rules  referred  to  are  as  follows : 


ALABAMA  CAR  SERVICE  ASSOCIATION. 
Rule  I. 

PER  DIEM    CHARGES. 

All  property  shipped  in  carload  lots  shall  be  subject 
to  car  service  and  trackage  charges  in  accordance  with  the 
following  regulations: 

A  charge  of  one  dollar  per  car  per  day  or  fraction 
thereof  shall  be  made  for  the  delay  of  cars  and  the  use  of 
tracks  within  the  following  described  territory,  after  forty- 
eight  hours  from  arrival  thereat,  not  including  Sundays  or 
legal  holidays. 

Rule  II. 

RULES  FOR  RECKONING  TIME. 

On  cars  arriving  during  the  forenoon,  after  7  A.  M.,  and 
held  for  orders  from  consignees,  car  service  will  be  charged 
after  the  expiration  of  forty-eight  hours  from  12  M.  of  that 
day,  and  on  cars  arriving  after  12  M.  to  and  including  7  A. 
M.  of  the  following  day,  car  service  charges  will  commence 
forty-eight  hours  from  7  A.  M.  of  the  following  day,  pro- 
vided notification  has  been  given  during  that  day  previous 
to  this  time.  Should  notification  not  be  given  within  the 
time,  car  service  will  commence  forty-eight  hours  from  the 
hour  of  notification. 

On  cars  consigned  to  team  tracks  or  private  tracks  and 
which  may  be  so  delivered  on  advance  or  standing  orders 
from  consignees,  car  service  will  be  charged  after  the  ex- 
piration of  forty-eight  hours  from  the  time  such  cars  are 
placed  on  the  tracks  designated. 


45 
Rule  III. 

CARS   FOR  DELIVERY  ON   TEAM   TRACKS   AND   PRIVATE  SIDINGS. 

Cars  containing  freight  to  be  delivered  on  team  tracks 
or  private  sidings  shall  be  delivered  on  the  track  designated 
immediately  upon  arrival,  or  as  soon  thereafter  as  the  or- 
dinary routine  of  yard  work  will  permit. 

(a)  The  time  consumed  in  placing  such  cars,  or  in 
switching  cars  for  which  directions  are  given  by  consignees, 
after  arrival,  shall  not  be  included  when  computing  deten- 
tion. 

(b)  The  delivery  of  cars  consigned  to  or  ordered  to 
sidings    used   exclusively   by  -certain   firms   or   individuals 
located  on  such  sidings  shall  be  considered  to  have  been  ef- 
fected either  when  such  cars  have  been  placed  on  the  siding 
so  designated ;  or,  if  such  siding  be  full,  when  the  road  of- 
fering the  cars  would  have  made  delivery  had  such  sidings 
permitted. 

(c)  No  cars  shall  be  held  from  delivery  in  any  man- 
ner, provided  it  is  possible  to  secure  their  delivery,  and  the 
Manager  is  charged  with  the  duty  of  seeing  that  the  pur- 
poses for  which  this  Association  is  formed  are  not  evaded 
by  the  action  of  any  Railroad  Company. 

(d)  On  deliveries  to  sidings  used  exclusively  by  cer- 
tain firms  or  individuals  located  on  said  sidings,  and  where 
consignees  or  consignors  refuse  to  pay  or  unnecessarily  de- 
fer settlement  of  bills  for  car  service  charges,  the  agent  will 
decline  to  switch  cars  to  the  sidings  where  such  parties  are 
located,  notifying  them  that  deliveries  will  only  be  made  to 
them  on  the  public  delivery  tracks  of  the  Company  after  the 
payment  of  freight  charges  at  his  office,  and  will  promptly 
notify  the  Manager  of  the  action  taken. 

Rule  IX. 

COLLECTIONS. 

Agents  will  collect  car  service  charges  accruing  under 
the  rules  of  the  Association  with  the  same  regularity  and 
promptness  as  other  transportation  charges,  and  the  Mana- 
ger is  charged  with  the  duty  of  seeing  that  these  rules  are 
enforced  without  discrimination. 


46 

(a)  It  is  the  duty  of  the  agent  to  demand  car  service 
on  all  cars  before  delivering  them,  where  car  service  has 
accrued  between  notification  and  ordering.     It  is  also  the 
duty  of  an  agent,  where  he  has  any  doubt  about  car  ser- 
vice being  paid,  to  demand  one  dollar  car  service  at  the  end 
of  the  free  time  allowed  for  unloading  cars,  and  if  said  car 
service  is  refused,  to  decline  to  deliver  the  car  and  to  allow 
the  lading  to  be  taken  from  it,  either  by  sealing  the  car, 
locking  the  car,  or  placing  it  where  it  is  not  accessible  to 
consignee. 

(b)  All  collections  for  car  service  charges  shall  be- 
long to  the  road  upon  whose  tracks  the  cars  are  detained. 

(c)  Railroads  shall  not  discriminate  between  persons 
in  car  service  charges.     If  a  railroad  company  collects  car 
service  from  one  person,  under  the  Car  Service  Rules,  it 
must  collect  of  all  who  are  liable. 


Rule  XII. 

STORAGE. 

No  railroad  company,  member  of  this  Association,  shall 
provide  free  storage  in  its  freight  warehouses  of  contents 
of  loaded  cars  subject  to  car  service  charges,  but  any  rail- 
road company  may  unload  cars  subject  to  car  service 
charges  into  its  own  warehouse  or  into  public  or  private 
warehouses  subject  to  the  following  rule  and  regulations : 


MISSISSIPPI  RAILROAD  COMMISSION. 
Rule  L 

RAILROAD    COMPANIES    TO    GIVE    PROMPT    NOTICE    OF    ARRIVAL 

OF    GOODS. 

Railroad  companies  shall  give  prompt  notice  by  mail  or 
otherwise  to  consignee  of  arrival  of  goods,  together  with 
weight  and  amount  of  freight  charges  due  thereon,  and 
when  goods  or  freight  of  any  kind  in  car  load  quantities  ar- 


47 

rive,  said  notice  must  contain  letters  or  initials  of  the  car, 
number  of  the  car,  net  weight  and  the  amount  of  the  freight 
charges  due  on  the  same.  Storage  and  demurrage  charges 
may  be  assessed  if  the  goods  are  not  removed  in  conformity 
with  the  following  rules  and  regulations.  No  storage  or 
demurrage  charges  however,  shall  in  any  case  be  allowed, 
unless  legal  notice  of  the  arrival  of  the  -goods  has  been 
given  to  the  owner  or  consignee  thereof  by  the  railroad 
company. 

Rule  II. 

DEFINITION  OF  LEGAL  NOTICE. 

Legal  notice  referred  to  in  these  niles  may  be  either 
actual  or  constructive.  Where  the  consignee  is  personally 
served  with  notice  of  the  arrival  of  freight,  free  time  be- 
gins at  7  o'clock  A.  M.  on  the  day  after  such  notice  has  been 
given. 

Rule  IV. 

DEMURRAGE   ON    LOADED    CARS,    HOW    ASSESSABLE. 

Loaded  cars,  which  by  consent  and  agreement  between 
the  railroad  and  consignees,  that  are  to  be  unloaded  by  con- 
signees, such  as  bulk  meat,  bulk  grain,  hay,  cotton  seed, 
lumber,  lime,  coal,  coke,  sand,  brick,  stone  and  wood,  and  all 
cars  taking  track  delivery,  which  are  not  unloaded  from  cars 
containing  same  within  forty-eight  hours  (not  including 
Sundays  or  legal  holidays)  computed  from  7  A.  M.  from 
the  day  following  the  day  legal  notice  is  given  of  its  arrival 
and  the  car  or  cars  are  placed  accessible  for  unloading,  may 
be  subject  thereafter  to  a  charge  of  demurrage  of  one  dol- 
lar per  car  for  0ach  day  or  fraction  of  a  day  that  said  car  or 
cars  remain  loaded  in  the  possession  of  the  railroad  com- 
pany;  it  being  understood  that  said  car  or  cars  are  to  be 
placed  and  remain  accessible  to  the  consignee  for  the  pur- 
pose of  unloading  during  the  period  in  which  held  free  of 
demurrage,  and  when  the  period  of  such  demurrage  charges 
commences  they  are  to  be  placed  acessible  to  the  consignee 
for  unloading  purposes  on  demand  of  the  consignee;  pro- 
vided, however,  that  if  the  railroad  company  shall  remove 


such  car  or  cars  after  being  so  placed,  or  in  any  way  ob- 
struct the  unloading  of  the  same,  the  consignee  shall  not  be 
chargeable  with  the  delay  caused  thereby;  provided  further, 
that  when  consignees  shall  receive  four  or  more  cars  during 
any  one  day  loaded  with  lumber,  laths,  shingles,  wood,  coal, 
lime,  ore,  sand,  or  bricks,  and  all  cars  taking  track  delivery, 
the  said  cars  in  excess  of  three  shall  not  be  liable  to  demur- 
rage by  any  railroad  company  until  after  the  expiration  of 
seventy-two  (72)  hours. 

Plaintiff  was  engaged  in  the  wholesale  feed  and  grain 
business  in  the  City  of  Meridian ;  he  handled  large  numbers 
of  cars  of  hulls,  feed  stuff,  grain  and  other  commodities  re- 
quiring track  delivery ;  some  of  these  cars  were  unloaded  at 
Meridian,  some  rebilled  to  other  points.  For  convenience 
in  unloading  and  handling  freight,  George  had  leased  a  por- 
tion of  a  warehouse,  which  was  located  on  a  spur  track 
known  as  the  "Compress  track,"  the  larger  part  of  which 
was  used  by  the  Cotton  Compress  Company  and  other  con- 
cerns, and  as  their  warehouses  were  situated  further  up  the 
spur  track  all  of  the  cars  used  by  them  had  to  pass  over  that 
portion  of  that  track  to  the  use  of  which  George  was  en- 
titled, thus  necessitating  two  res  witching  and  replacing  of 
his  cars ;  but  the  lease  to  George  was  made  with  full  knowl- 
edge on  his  part  of  this  condition  of  affairs.  George's  ware- 
house only  had  trackage  for  four  cars.  It  was  the  usual 
course  of  dealing  between  George  and  the  railroad  company 
that  the  cars  were  to  be  set  into  his  side  track  on  arrival, 
without  special  demand,  and  the  representatives  of  the  Ala- 
bama Car  Service  Association  would  check  the  cars  on  the 
track  each  day  to  see  that  there  was  no  unnecessary  delay  in 
the  switching  and  placing  of  the  cars.  The  New  Orleans  & 
North  Eastern  Railroad  Company  had  also  an  employee 
who  was  charged  with  the  duty  of  checking  all  cars  on  the 
track,  and  this  double  checking  was  recorded  in  books  kept 
for  that  purpose  and  the  results  compared  to  guard  against 
errors. 

On  Saturday,  December  7th,  1901,  a  train  of  12  cars 
loaded  with  cotton  seed  hulls,  loose  in  bulk,  reached  Meri- 
dian, consigned  to  A.  H.  George  &  Co.  On  arrival,  this 
train  was  placed  on  the  "storage  track"  appellant  contend- 
ing that  it  was  necessary  on  account  of  the  crowded  condi- 
tion of  the  "Compress  track."  On  Monday  9th,  the  "Com- 


49 

press  track"  being  still  crowded  with  cars  the  train  was 
switched  to  the  "Water  Works  track."  It  was  shown  that 
at  this  date  the  railroad  business  at  Meridian  was  extremely 
large ;  every  track  was  in  constant  use ;  every  car  needed  for 
the  transportation  of  cotton  and  other  freight.  On  the  same 
day  notice  of  the  arrival  of  this  freight  was  sent  to  George, 
but  he  declined  to  receive  the  freight  bill  claiming  an  over- 
charge. George  denied  that  the  freight  bills  were  tendered 
to  him,  but  he  paid  the  freight  charges  on  the  12  cars  of 
hulls  on  the  I3th  inst.  and  either  that  day  or  a  few  days 
thereafter  had  the  overcharge  corrected.  George  knew  of 
the  rules  of  the  Alabama  Car  Service  Association;  was  fa- 
miliar with  the  provisions  regarding  demurrage;  had  paid 
some  demurrage  and  had  refused  to  pay  some,  and  at  this 
date  had  a  dispute  or  litigation  pending  about  another  mat- 
ter of  demurrage. 

None  of  the  cars  composing  this  train  were  placed  in 
front  of  the  warehouse  of  George ;  the  Car  Service  Associa- 
tion's representative  and  the  railroad  company's  car  checker 
both  testified  that  at  no  part  of  the  "free  time"  after  the  ar- 
rival of  this  train  did  George  have  less  than  four  cars  on  his 
side  track,  and  an  inspection  of  their  original  books  corrob- 
orates this.  George  was  notified  during  the  "free  time"  that 
demurrage  would  accrue,  and  shortly  after  the  "free  time" 
expired  he  was  again  advised  of  this  claim  and  then  and 
there  denied  his  liability,  denied  the  right  of  the  railroad 
company  to  claim  demurrage  and  refused  to  pay. 

The  Manager  of  the  Car  Service  Association  instructed 
the  railroad  company  not  to  deliver  the  cars  until  the  de- 
murrage was  paid. 

So  matters  stood  until  about  the  ist  of  February,  1902, 
when  the  railroad  company  released  six  of  the  cars  to 
George  and  notified  him  of  its  intention  to  sell  the  contents 
of  the  remaining  six  for  the  demurrage  on  the  twelve. 
Thereupon  this  suit  was  filed  for  the  contents  of  five,  the 
hulls  in  the  other  proving  worthless.  At  the  conclusion  of 
the  testimony  the  court  refused  a  peremptory  instruction  for 
the  defendant  and  submitted  the  case  to  the  jury  under  in- 
structions for  both  sides.  The  jury  found  for  plaintiff  and 
the  North  Eastern  Railroad  Company  appeals. 


50 

NEW  ORLEANS  &  NORTH  EASTERN  RAILROAD  COMPANY 

10865 — z's' 
A.  H.  GEORGE  &  COMPANY. 


OPINION  OF  THE  COURT. 


TRULY,  /. 


This  suit  involves  the  determination  of  the  following 
questions : 

First.  Are  the  rules  for  the  collection  of  demurrage 
valid,  and 

Second.     If  so,  how  are  they  to  be  enforced  ? 

Car  Service  Associations  are  formed  by  mutual  agree- 
ment among  the  railroad  companies  operating  in  a  stated 
territory;  they  owe  their  existence  to  the  growth  of  the 
business  interests  of  the  country,  the  enormous  increase  in 
the  bulk  of  through  freight  handled  daily  and  the  conse- 
quent extension  of  the  many  railroad  systems  handling  the 
same.  With  every  increase  in  the  volume  of  the  freight 
brought  into  a  section  from  distant  markets,  hauled  without 
unloading  over  the  tracks  of  many  connecting  systems  of 
the  same  gauge,  it  became  more  difficult  for  each  carrier  to 
keep  track  of  its  own  cars.  As  the  cars  of  each  system  were 
handled  indiscriminately  by  every  other  system,  they  soon 
drifted  to  every  quarter  as  the  current  of  traffic  ebbed  or 
flowed  and  their  whereabouts  were  often  unknown  to  the 
carrier  owning  them.  To  correct  this  evil  car  service  asso- 
ciations were  formed,  the  primary  object  of  which  was  to 
prevent  loss  by  keeping  a  daily  record  of  every  car  handled 
by  each  carrier,  so  that  each  system  might  receive  compen- 
sation for  the  use  of  its  rolling  stock  and  no  unfair  advan- 
tage taken  by  one  system  over  another ;  and  further  to  pre- 
vent cars  standing  idle  at  one  place  when  needed  to  meet 
the  traffic  and  demands  of  another  section  of  the  country. 
These  organizations  had  a  beneficial  effect  in  preventing 
congestion  of  empty  and  idle  cars  at  one  point  while  a  car 


famine  prevailed  at  another.  But  it  soon  became  apparent 
that  the  remedy  was  not  complete ;  carriers  earned  money  by 
the  moving  of  freight ;  the  idle  car  produces  no  revenue  and 
the  car  service  associations  found  that  while  it  was  possible 
under  its  then  existing  rules  to  keep  the  unloaded  cars  mov- 
ing from  place  to  place  as  necessity  might  require,  they  were 
without  power  to  have  the  freight  promptly  unloaded  by  the 
consignee  thus  securing  the  car  for  further  service. 

The  merchant  who  bought  goods  for  sale  from  his 
shelves  or  through  his  warehouse,  was  ordinarily  anxious 
to  receive  and  unload  his  freight,  but  the  broker  who  wished 
to  do  a  large  business  with  limited  or  no  warehouse  facilities, 
found  it  cheaper  and  more  convenient  to  use  the  cars  of  the 
carrier  for  storage  purposes  and  thus  with  no  expense  to 
him  wait  a  favorable  fluctuation  of  price  when  the  commo- 
dity could  be  disposed  of  to  advantage  and  the  car  unloaded 
or  rebilled  to  another  place  without  unloading.  To  meet 
this  contingency  the  demurrage  rules  in  question  were  form- 
ulated and  promulgated. 

It  should  be  noted  that  the  purpose  of  car  service  asso- 
ciations was  not  to  make  money ;  they  increase  the  revenue 
of  the  contracting  carriers  only  incidentally  in  that,  by 
keeping  every  car  in  active  service,  the  earning  capacity  was 
constantly  exerted  and  the  returns  therefrom  increased;  but 
the  prime  object  of  their  formation  was  to  observe  and  pro- 
mote the  mutual  interests  of  the  carriers  and  the  public  deal- 
ing with  them,  by  improving  the  service  of  the  traffic  depart- 
ment and  insuring  the  prompt  handling  and  speedy  delivery 
of  freight  to  the  consignee. 

It  is  admitted  that  the  amount  charged  under  the  de- 
murrage rules  is  reasonable,  and  it  appears  to  us  that  the 
rules  in  themselves  are  fair  and  based  upon  the  fundamental 
maxim  of  justice  "the  greatest  good  to  the  greatest  number." 
The  carrier  of  freight  is  responsible  in  damages  if  it  unrea- 
sonably delays  the  transportation  of  freight  delivered  to  it 
and  exact  justice  demands  equal  diligence  of  the  consignee. 

When  freight  has  been  transported  to  its  destination 
and  the  consignee  legally  notified  of  its  arrival  it  then  be- 
comes the  duty  of  the  consignee  to  promptly  receive  the 
same,  so  that  the  car  may  again  be  placed  in  service.  These 
rules  work  no  hardship  to  the  consignee  who  displays  proper 


52 

diligence  in  the  handling  of  his  freight,  ample  time  is  granted 
him,  but  they  prevent  the  dilatory  dealers  who  seek  to  save 
storage  or  warehouse  charges  from  keeping  the  track  block- 
ed with  idle  cars,  thereby  impeding  the  carriers  in  the 
prompt  handling  of  freight  and  depriving  other  dealers  of 
the  use  of  necessary  cars  to  haul  their  freight  or  transport 
the  product  of  the  country  to  market. 

Certainly  no  reason  founded  in  justice,  can  be  given 
why  consignees  should  not  pay  for  any  unreasonable  or  un- 
necessary detention  of  cars.  Prompt  handling  of  freight  by 
both  carrier  and  consignee  is  for  the  best  interest  of  both, 
and  of  the  commercial  world  at  large. 

The  question  was  never  before  in  this  Court,  but  this 
view  is  in  full  accord  with  an  almost  unbroken  line  of  deci- 
sions in  other  States  and  precedent  aside,  it  is  supported  by 
justice  and  right.  (Norfolk  &  W.  R.  Co.  vs.  Adams,  90  Va. 
393,  22  L.  R.  A.,  550;  Kentucky  Wagon  Mfg.  Co.  vs.  O. 
M.  Ry.  Co.,  98  Ky.,  152,  36  L.  R.  A.,  850,  and  cases  cited.) 
They  have  also  been  approved  by  the  railroad  commissions 
of  various  States  who  are  charged  with  the  duty  of  guarding 
the  interest  of  the  public. 

It  is  well  settled  that  railroad  companies  may  make  rea- 
sonable rules  and  regulations,  not  to  limit  their  own  duty  or 
liability  but  for  the  convenient  transaction  of  business  be- 
tween themselves  and  the  shippers  of  freight  over  their 
lines. 

Having  reached  the  conclusion  that  the  rules  imposing 
reasonable  demurrage  charges  upon  dilatory  consignees  are 
fair,  just  and  enforcible,  we  now  pass  to  a  consideration  of 
the  manner  of  their  enforcement. 

It  may  be  borne  in  mind  that  the  duty  of  the  railroad 
company  as  a  carrier  of  freight  terminates  under  the  deci- 
sions of  our  court  when,  the  freight  having  reached  its  des- 
tination in  good  order  the  consignee  is  legally  notified  of  its 
arrival,  after  that  time  the  railroad  holds  as  warehouseman 
and  bailee  for  hire.  But  in  the  present  case  whether  appel- 
lant held  as  carrier  or  as  warehouseman  and  special  bailee 
it  was  in  either  of  these  capacities,  rightfully  in  possession 
and  had  the  right  to  retain  that  possession  until  its  legiti- 
mate charges  were  paid.  This  is  a  suit  in  replevin  in  which 


53 

right  of  possession  is  the  only  question  of  law  involved.  If 
there  was  any  sum  due  appellant,  whether  little  or  much, 
the  verdict  should  have  been  that  it  retain  possession. 

It  is  earnestly  insisted  that  the  railroad  company  has 
no  lien  on  the  freight  for  demurrage  charges  either  by  stat- 
ute or  at  common  law.  It  may  be  true  that  there  is  a  tech- 
nical distinction  between  the  lien  here  claimed  and  the  com- 
mon law  lien,  though  the  difference  is  more  imaginary  than 
real;  but  it  is  undoubtedly  true  that  the  warehouseman  as 
bailee  for  hire  has  a  lien  for  his  reasonable  charges  and  this 
is  recognized  as  to  warehouseman  by  the  express  terms  of 
section  2108,  code  1892,  in  wjiich  a  lien  is  given  for  freight 
and  storage  coupled  with  a  power  to  sell  in  a  manner  therein 
pointed  out.  If  a  carrier  has  a  lien  for  storage  charges  if 
the  freight  is  unloaded  into  a  warehouse  upon  what  princi- 
ple can  it  be  denied  if  by  the  action  of  the  consignee  the  cars 
themselves  become  his  storage  houses?  Particularly  when, 
as  in  this  case,  the  consignee  knows  in  advance  by  his  course 
of  dealing  with  the  carrier  that  the  charges  will  be  incurred 
if  he  delays  in  receiving  his  freight.  In  our  judgment,  by 
necessary  implication  the  code  chapter  on  freight  and  stor- 
age carries  with  it  the  necessary  lien  to  enforce  the  collec- 
tion of  all  reasonable  charges  incident  to  the  handling  of 
freight.  In  a  case  of  this  character,  involving  the  dealings 
of  a  carrier  and  public,  the  courts  will  not  narrowly  restrict 
the  meaning  of  a  statute,  but  will  rather  "expand  the  prin- 
ciples" of  law  and  fit  them  to  the  exigencies  of  the  occasion" 
as  was  aptly  phrased  by  the  eminent  jurist,  Chief  Justice 
Cooper,  in  discussing  a  similar  proposition  (66  Miss.  $55). 
Knowing  the  rules  governing  the  transaction  the  voluntary 
action  of  the  consignee  gives  an  implied  assent  to  the  charge 
and  lien  which  those  rules  assert. 

By  the  sole  action  of  the  consignee  the  carrier  is  forced 
to  retain  the  possession  of  the  freight ;  by  operation  of  law, 
it  is  required  to  keep,  store  and  care  for  the  property  of  an- 
other, it  is  under  the  law  entitled  to  compensation  for  its 
services  in  this  connection  and  the  law  gives  it  a  remedy  to 
enforce  its  right.  In  the  case  of  Wolf  vs.  Crawford,  54 
Miss.,  514 — our  court — in  discussing  the  right  of  a  carrier 
as  a  bailee  said :  "But  the  right  of  the  general  owner  (of 
the  freight)  to  be  restored  to  the  possession  is  dependent  on 
the  payment  or  tender  of  the  freight  and  other  charges  on 


54 

the  goods  of  the  carrier.  For  these  he  had  a  lien  which 
would  be  lost  if  he  had  parted  with  the  possession  ;  and  he 
cannot  be  compelled  to  make  delivery  until  they  are  dis- 
charged. The  general  owner  cannot  dispossess  the  carrier 
of  the  goods  without  payment  or  tender  of  his  legal  de- 
mands upon  them." 

Again, 

"But  a  bailee  until  the  condition  of  the  bailment  have 
been  accomplished  has  a  property  in  the  chattels  and  the 
possession  which  is  exclusive,  both  as  to  the  general  owner 
and  strangers,  his  right  and  possession  extend  to  the  entire 
property;  nor  can  the  bailor  or  any  one  claiming  through 
him.  interrupt  and  defeat  his  rights  until  a  satisfaction  of  his 
claim  or  an  offer  to  do  so.  The  common  carrier,  warehouse- 
man and  all  the  class  of  bailees  who  have  a  beneficial  inter- 
est have  a  right  of  possession  and  a  lien  in  the  thing.  These 
rights  are  inviolable  until  the  acts  and  purposes  for  which 
they  were  created  are  performed." 

In  Miller  vs.  Ga.  R.  R.  Co.,  supra,  after  stating  the  gen- 
eral rule  that  a  carrier  had  a  right  to  collect  reasonable  stor- 
age, the  opinion  preceded  : 

"We  do  not  think  it  material  as  affecting  the  right  to 
make  a  charge  of  this  character  that  the  goods  remained  in 
the  car  instead  of  being  put  into  a  warehouse." 

28  Am.  &  Eng.  Ency,  L.  663. 

Dixon  vs.  Central  of  G.  R.  R.,  35  $.  E.  R.  369. 

Barker  vs.  Brown,  138  Mass. 


There  is  no  force  in  the  argument  which  conceded  the 
right  of  the  carrier  to  make  demurrage  charges  but  con- 
tends that  the  goods  be  delivered  and  then  the  carrier  sue 
for  the  amount.  This  course  would  give  the  dishonest  and 
insolvent  an  unfair  advantage  and  would  breed  a  multipli- 
city of  suits. 

It  is  contended  for  appellee  that  whatever  may  be  the 
general  rule  in  the  instant  case  the  appellant  should  be  de- 
feated of  its  recovery  because  it  failed  to  bring  itself  within 


55 

the  rules  allowing  demurrage  in  this.  It  failed  to  notify 
the  consignee  in  the  manner  pointed  out  and  it  failed  to  ten- 
der delivery  of  the  freight  as  required  by  the  rules  of  the 
car  service  association.  As  to  the  first  contention  it  is 
enough  to  say  that  the  object  of  the  rule  was  reached  and 
the  law  fully  complied  with  when  George  was  advised  of 
the  arrival  of  the  twelve  cars,  though,  if  the  testimony  of 
Hall,  as  supported  by  the  entries  in  his  notice  book,  be  true, 
the  rule  was  literally  complied  with. 

As  to  the  second  contention,  there  is  conflict  as  to  the 
fact.  It  is  true  that  the  cars  were  not  in  fact  placed  in  front 
of  George's  warehouse,  but  the  testimony  does  not  clearly 
show  that  it  was  the  fault  of  the  appellant.  On  the  contrary, 
the  testimony  of  Fewell,  the  representative  of  the  Car  Ser- 
vice Association ;  of  Lowery,  car  Checker  of  appellant  com- 
pany, supported  by  the  contemporaneous  entries  in  their 
record  books,  if  believed  by  the  jury,  show  conclusively  that 
during  all  of  the  "free  time"  to  which  appellee  was  entitled 
under  the  rules,  placing  in  front  of  George's  warehouse  was 
prevented  by  an  accumulation  of  cars  consigned  to  George 
himself.  This  is  contradicted  by  Shepherd,  car  checker  for 
appellee,  while  appellee  himself  testified  that  "there  was  no 
place  to  deliver  them ;  they  had  our  track  full  of  cotton." 

With  the  sharp  conflict  of  testimony  on  this  point, 
clause  "b"  of  Rule  III.,  must  be  considered.  "The  delivery 
of  cars  consigned  to  or  ordered  to  sidings  used  exclusively 
by  certain  firms  or  individuals  located  on  such  sidings,  shall 
be  considered  to  have  been  effected  either  when  such  cars 
have  been  placed  on  the  sidings  designated ;  or,  if  such  sid- 
ings be  full,  when  the  road  offering  the  cars  would  have 
made  delivery  had  such  sidings  permitted."  It  was  claimed 
by  appellant  that  the  cars  would  have  been  placed  on  siding 
on  arrival  had  the  siding  permitted ;  there  is  much  proof 
that  the  siding  was  full.  Whether  the  siding  was  filled  with 
cars  consigned  to  George  or  to  the  Cotton  Compress,  in 
either  event  appellant  was  excused  from  delivering  upon  the 
siding.  If  George  had  his  full  quota  of  cars,  then  he  had  no 
ground  of  complaint.  If  the  siding  was  filled  with  cars  for 
Compress,  it  had  equal  right  to  use  of  siding  and  appellant 
is  not  liable. 


56 

The  Court  correctly  instructed  the  jury  on  the  point  by 
5th  instruction  for  defendant,  but  also  gave  the  2d  instruc- 
tion for  plaintiff  and  in  the  light  of  our  conclusions  this 
was  error.  By  this  instruction  the  jury  was  told  that  it  de- 
volved upon  defendant  to  prove  by  a  preponderance  of  the 
evidence  that  it  notified  plaintiff  of  the  arrival  of  the  cars, 
and  placed  them  on  the  side  track  adjacent  to  plaintiff's 
warehouse,  or  "to  show  circumstances  of  excuse  or  justifi- 
cation therefor." 

This  was  misleading.  By  it  the  determination  of  cer- 
tain questions  was  submitted  to  the  jury,  whereas,  in  fact, 
the  questions  were  not  in  dispute.  The  jury  did  not  have  to 
pass  on  the  question  of  notice;  George's  own  testimony 
leaves  no  doubt  of  his  knowledge  of  the  arrival  of  the  cars. 
In  the  light  of  the  instructions  for  the  defendant  the  jury 
were  left  in  doubt  as  to  what  was  meant  by  "circumstances 
of  excuse  or  justification  therefor."  To  sum  up  the  sole 
question  of  disputed  fact  involved  in  this  record;  is,  was 
the  siding  so  filled  with  cars  consigned  to  George,  or  to 
others  entitled  to  use  the  side  track  as  to  prevent  the  rail- 
road company  placing  the  cars  until  after  the  expiration  of 
the  "free  time."  If  so,  the  railroad  was  entitled  to  the  ver- 
dict ;  if  not,  George  should  recover.  Upon  this  sole  question 
is  there  sufficient  conflict  to  justify  the  submission  of  the 
cause  to  the  jury  for  determination. 

The  ingenuous  but  fallacious  argument  is  made  that 
the  railroad  company  should  not  be  permitted  to  claim  the 
fact  if  fact  it  be,  that  the  siding  was  full  of  cars  consigned  to 
the  compress  as  "an  excuse  or  justification"  in  the  language 
of  the  second  instruction  for  plaintiff  for  the  failure  to  place 
the  cars  in  question,  because  of  the  unjust  favoritism  shown 
the  Compress  company  by  the  railroad  company  in  not 
charging  demurrage  on  cars  loaded  with  cotton.  This  is 
not  within  the  condemnation  of  the  rules.  Clause  c,  Rule 
IX.  prohibits  discrimination  between  persons  and  says  that 
if  the  car  service  be  collected  from  one  person  it  must  be 
collected  of  all  who  are  liable.  This  is  to  prevent  discrim- 
ination between  persons  handling  cars  loaded  with  the  same 
class  of  freight.  So  that  if  car  service  is  collected  from  one 
dealer  handling  hulls,  or  flour,  or  grain,  or  other  class  of 
freight,  it  must  be  collected  from  all  dealers  handling  the 
same  class  of  freights.  But  in  the  instant  case,  car  service 


i^UFO 

57 

was  collected  from  no  car  loaded  with  cotton  or  coal  no 
matter  by  whom  handled,  anywhere  within  the  territory 
covered  by  the  Alabama  Car  Service  Association.  It  is  to  be 
seriously  doubted  whether  under  the  undisputed  testimony 
of  the  assistant  manager  of  the  Alabama  Car  Service  Asso- 
ciation the  carriers  have  the  authority  to  impose  car  ser- 
vice on  the  cars  loaded  with  cotton  or  coal.  We  know  of  no 
reason  why  we  should  condemn  as  unlawful  or  unjust  the 
exemption  of  cars  loaded  with  cotton  or  coal  from  car  ser- 
vice charges,  while  many  reasons  present  themselves  to  com- 
mend the  equity  of  the  rule.  In  construing  the  language  of 
said  second  instruction  the  jury  might  well  have  inferred, 
in  considering  all  the  instructions  together  that  even  though 
the  siding  was  filled  with  cars  for  George  or  the  Compress 
this  was  no  "excuse  or  justification"  for  the  appellant  be- 
cause no  car  service  was  collected  of  the  Compress.  And 
this  position  is  not  maintainable. 

For  the  error  in  giving  the  second  instruction  for  plain- 
tiff above  referred  to  which  is  in  itself  erroneous  and  mis- 
leading and  is  in  conflict  with  the  other  instruction  for  both 
plaintiff  and  defendant  the  case  is  reversed  and  remanded 
and  a  new  trial  awarded. 

As  a  new  trial  must  be  awarded  for  the  error  indicated, 
one  further  question  presents  itself  for  decision,  did  the  rail- 
road company  forfeit  its  claim  for  demurrage  upon  the  six 
cars  released  by  releasing  the  six  cars  and  holding  the  re- 
maining six  for  the  charges  upon  the  entire  twelve.  The 
twelve  cars  in  question  constituted  one  shipment  belonging 
to  one  owner  received  at  the  same  time ;  further  a  different 
amount  of  demurrage  was  due  (if  any  was  due)  upon  four 
cars  from  what  was  due  upon  the  remaining  eight,  there 
was  no  way  to  distinguish  the  four  cars  from  the  eight  ex- 
cept by  arbitrary  selection.  The  cars  were  all  loaded  with 
the  same  commodity  loose  in  bulk. 

In  28  Am.  &  Eng.  Hncy.  L.,  the  rule  is  stated :  "the  lien 
(for  storage  charges)  is  a  right  to  retain  possession  of  the 
goods  until  the  satisfaction  of  the  charges  imposed  upon 
them;  it  is  specific  upon  the  goods  stored  for  the  particular 
charges  for  such  storage  although  the  entire  lien  extends  to 
every  parcel  of  the  goods  stored  at  any  one  time." 


53 

In  Schmidt  vs.  Blood,  24  Am.  Dec.,  143,  it  is  said: 
"A  warehouseman  has  a  lien  upon  the  balance  left  in  his 
hands  of  an  entire  lot  of  merchandise  entrusted  to  him  at  the 
same  time,  after  delivery  of  part  for  the  storage  of  the 
whole."  And  the  same  conclusion  is  reached  in  Steinmcm  vs. 
Wilkins,  42  Am.  Dec.,  254,  a  thoroughly  well  reasoned  case 
and  fully  supported  by  citation  of  numerous  authorities. 


In  Penna.  Steel  Co.  vs.  Ga.  R.  R.  &  B.  Co.  a  recent 
case  reported  in  94  Ga.  636,  it  was  decided  that  a  railroad 
company  had  the  right  to  retain  from  each  consignment  one 
or  more  cars  to  secure  itself  for  the  freight  and  demurrage 
it  claimed  on  such  consignment.  And  we  think  this  the 
true  and  just  rule,  supported  by  reason  and  the  more  mod- 
ern decisions. 


We  are  unable  to  see  why  it  should  be  required  of  the 
carrier  that  it  retain  twelve  cars  loaded  with  a  commodity, 
belonging  to  the  same  owner,  when  the  contents  of  a  fewer 
number  of  the  cars  is  sufficient  to  liquidate  its  charges  on 
all ;  especially  in  a  case  where  as  in  the  instant  case  a  dispute 
has  arisen  as  to  the  validity  of  the  charges  claimed,  and  the 
consignee  is  willing  to  receive  the  contents  of  the  other  cars. 
As  stated  the  conclusion  of  the  Supreme  Court  of  Georgia 
occurs  to  us  as  being  just,  sensible  and  convenient  rule. 
It  avoids  the  sale  of  a  large  amount  of  freight  for  the  col- 
lection of  a  trifling  sum ;  it  saves  the  consignee  the  possibil- 
ity of  a  loss  by  the  sacrifice  of  his  property  at  a  forced  sale, 
and  it  gives  the  carrier  the  speedy  use  of  its  cars  for  the 
moving  of  other  freight.  We  note  nothing  in  the  rules  under 
consideration  forbidding  such  action,  and  it  commends  it- 
self to  us  as  being  the  proper  course. 


If  the  question  of  fact  be  decided  in  favor  of  appellant 
that  it  is  entitled  to  demurrage  in  this  case,  the  six  cars  re- 
tained by  it  are  liable  to  the  charges  for  the  entire  twelve 
constituting  the  shipment. 


For  the  reasons  hereinbefore  stated  the  case  is  reversed 
and  remanded. 


59 

I,  George  C.  Myers,  clerk  of  the  Supreme  Court  of 
Mississippi,  do  hereby  certify  the  foregoing  to  be  a  true 
copy  of  the  opinion  of  said  court,  delivered  in  the  cause 
hereinbefore  stated  as  the  same  appears  of  record  in  my 
office. 

In  testimony  whereof  I  hereunto  set  my  hand  and  seal 
of  said  Court  at  office  at  Jackson  this  I9th  day  of  November, 
1905- 

GEO.  C.  MYERS,  Clerk. 


IN   TH'E  COURT  OF  COMMON   PLEAS,   SUMMIT 
COUNTY,  STATE  OF  OHIO. 

No.  11,419,  MAY  TERM,  1904. 
14  Low.  D.  Col,  1548. 


OPINION  ON  DEMURRER. 


THE  THOMAS  PHILUPS  COMPANY,  Plaintiff, 

vs. 
THE  ERIE  RAILROAD  COMPANY,  Defendant. 


WEBBER,  /.: 

The  questions  raised  arise  on  a  general  demurrer  to 
the  defendant's  answer.  In  substance  the  petition  alleges 
that  the  plaintiff  has  a  manufacturing  establishment  in  the 
city  of  Akron ;  that  the  defendant's  main  railway  track  runs 


6o 

through  said  city;  that  leading  from  said  railway  track  to 
the  plant  of  the  plaintiff  is  a  side-track,  constructed  for  the 
accommodation  of  the  plaintiff  in  receiving  and  shipping  its 
commodities  to  and  from  said  plant ;  that  the  defendant  has 
refused  longer  to  place  cars  on  said  side-track  at  plaintiff's 
plant  containing  goods  consigned  to  plaintiff,  thereby  com- 
pelling plaintiff  to  truck  the  goods  from  cars  consigned  to 
it,  shipped  over  defendant's  road,  from  the  station  of  the 
defendant,  at  great  expense  and  inconvenience  to  plaintiff. 
And  the  petition  also  alleges  that  in  one  instance  defendant 
wholly  refused  to  allow  plaintiff  to  take  the  goods  thus  con- 
signed to  it  from  one  of  said  cars. 


The  prayer  of  the  petition  is,  that  the  Court  order  the 
defendant  to  place  all  of  the  cars  consigned  to  the  plaintiff 
on  said  side-track,  that  shall  thus  be  in  the  hands  of  the  de- 
fendant consigned  to  plaintiff. 


The  answer  filed  by  the  defendant  to  this  petition  ad- 
mits the  existence  of  the  plaintiff  and  its  plant  at  the  location 
named,  also  said  side-track,  and  the  existence  of  the  defend- 
ant and  its  main  track  in  connection  with  said  side-track; 
and  it  admits  it  has  refused  and  does  refuse  to  longer  place 
cars  consigned  to  the  plaintiff  from  various  shippers  on  said 
side-track  at  plaintiff's  plant.  It  admits  that  it  refused  to 
let  the  plaintiff  have  the  goods  in  the  particular  car  in  ques- 
tion. And  the  answer  sets  up  as  an  excuse  or  reason  for  its 
refusal  that  at  and  a  long  time  before  so  refusing  to  comply 
with  the  demands  of  the  plaintiff,  it  belonged  to  a  Railroad 
Car  Service  Association,  formed  for  the  better  protection  of 
the  shipping  public  and  railroads,  forming  a  part  of  such 
association  to  better  expedite  the  railroad  shipping  business 
for  the  general  public. 


And  the  answer  sets  up  that  said  Car  Service  Associa- 
tion had  promulgated  certain  rules  governing  the  unloading 
by  consignees  of  cars  in  their  hands  from  consignors ;  that 
among  said  rules  is  one  which  provides  in  substance  that 
the  consignee  shall  within  a  certain  number  of  hours  unload 
each  car  thus  consigned  to  it  by  the  consignor  from  the  de- 


6i 

fendant's  road  and  said  other  roads  from  the  said  associa- 
tion, and  on  failure  so  to  do  said  consignee  should  pay  a  cer- 
tain amount  of  money  known  as  demurrage  for  such  delay. 
A  further  rule  of  such  association  provides,  that  should  any 
consignee  fail  to  pay  such  demurrage,  any  one  of  said  rail- 
roads should  have  the  right  to  refuse  to  longer  place  any 
goods  consigned  to  such  shipper  in  arrears,  on  its  side-track, 
until  such  delinquent  demurrage  due  on  other  cars  was  paid. 
Another  rule  of  said  Association  provides,  that  any  one  of 
said  railroads  should  have  the  right  to  refuse  to  let  the  con- 
signee take  from  any  car  consigned  to  such  consignee, 
goods,  where  the  same  were  not  unloaded  in  the  time  limit 
provided  by  the  Association's  rules  until  the  demurrage  was 
paid ;  and  the  defendant  claims  that  under  these  rules  and 
by  virtue  thereof,  it  has  refused,  still  refuses,  and  proposes 
to  refuse  hereafter  to  place  any  of  said  cars  consigned  to 
the  plaintiff  on  said  side-track  until  such  delinquent  arrear- 
ages are  all  paid  on  former  cars,  and  it  says  that  it  refused 
and  still  refuses  to  allow  said  plaintiff  to  take  the  goods 
from  said  particular  car  at  its  depot,  because  of  arrearages 
of  demurrage  due  thereon,  until  the  same  shall  be  paid. 

It  has  been  held  by  practically  all  of  the  courts  of  the 
land,  where  the  question  has  arisen,  and  so  often,  that  car 
associations  of  the  character  named  are  legal,  and  their 
rules  legal,  if  reasonable,  that  it  is  useless  to  cite  authorities 
upon  that  proposition.  On  this  all  the  text-writers  who 
have  touched  this  subject  agree. 

The  only  question  for  determination  on  this  demurrer 
is:  Are  these  particular  rules,  under  which  the  defendant 
has  refused  to  comply  with  the  requests  of  the  plaintiff, 
reasonable  ? 

When  I  first  began  to  investigate  this  question,  my  im- 
pressions were  against  their  reasonableness ;  but  on  consider- 
ation of  the  authorities,  while  none  are  exactly  in  point  as  to 
facts,  I  have  reached  the  conclusion  that  they  are  reason- 
able. An  exceedingly  instructive  authority,  and  the  leading 
one  in  this  country,  was  cited  by  counsel  for  defendant.  It 
is  a  Kentucky  case,  the  case  of  The  Kentucky  Wagon  Manu- 
facturing Co.  vs.  Louisville  &  Nashville  R.  R.  Co.,  98  Ky. 
152,  S.  C.,  50  Am.  &  Bng.  Cases  90. 


62 

It  seems  to  me  that  the  reasoning  in  that  able  opinion, 
in  which  large  numbers  of  authorities  are  reviewed,  with 
reference  to  the  reasonableness  of  rules  of  traffic  associa- 
tions, is  irresistible.  I  commend  its  careful  reading  to  those 
interested  in  this  important  subject.  While  not  exactly  in 
point,  so  far  as  the  facts  are  concerned,  yet  in  principle  it 
supports  the  contention  of  counsel  for  the  defendant  in  this 
case.  There  is  also  a  case  in  Illinois,  known  as  Bowen  W. 
Schumacher  vs.  Chicago  &  North  Western  Ry.  Co.,  which 
throws  light  on  this  question. 

In  the  unloading  by  the  consignee  of  railway  freight 
cars,  there  are  three  classes  whose  rights  must  be  taken  in 
consideration;  first,  the  consignee;  secondly,  the  railroads; 
thirdly,  the  shipping  public. 

The  failure  on  the  part  of  the  consignee  to  unload  a 
car  within  a  certain  time,  works  an  injury  to  the  railroad, 
for  its  car  is  thereby  for  the  time  being  put  out  of  use ;  and 
it  works  an  injury  to  other  consignors  for  the  time  being, 
for  the  reason  that  they  lose  the  benefit  of  such  car  often- 
times, when  there  is  a  glut  on  the  roads. 

Expedition  alone  on  the  part  of  the  consignee  in  un- 
loading a  car  within  a  certain  time  can  obviate  these  injuries 
to  the  other  two  classes  named. 

One  of  the  objects  of  a  traffic  association  on  the  part 
of  railroads  is  to  correct  the  abuse  of  many  consignees  who, 
through  negligence  or  oversight,  would  otherwise  retain 
cars  an  unreasonable  length  of  time.  To  hold  that  the  rail- 
road should  be  compelled  to  resort  each  time  to  a  suit  at 
law  to  recover  demurrage  where  the  consignee  has  failed  to 
unload  within  a  reasonable  length  of  time,  and  that  this 
alone  is  ample  leverage  on  the  consignee  for  the  benefit  of 
the  other  two  classes,  in  my  judgment  comes  short  of  the 
mark  in  aflfording  an  adequate  remedy  at  law.  It  has  been 
found  by  actual  experience  over  the  country  that  there  is  a 
disposition  on  the  part  of  many  consignees  to  forget  that 
the  cars  held  by  them  an  unreasonable  length  of  time  are 
greatly  needed  by  other  consignors  and  the  railroads.  And 
it  seems  to  require  very  strict  rules  in  order  to  keep  cars 
moving  for  the  great  public  against  such  consignees. 


63 

If  a  consignee  desires  to  have  cars  placed  upon  a  pri- 
vate switch  for  its  better  accommodation,  it  should  be  will- 
ing to  unload  such  cars  within  a  reasonable  time,  and  I  see 
no  injustice  in  the  rule  promulgated  by  a  car  association 
that  leaves  it  optional  with  the  railroad  company  to  which  it 
is  in  arrears  for  former  demurrage  to  say  it  will  not  place 
cars  longer  upon  such  side-track  until  the  former  demurrage 
on  other  cars  is  paid.  A  consignee  who  knows  that  this 
rule  will  be  enforced,  will  be  certain  to  unload  the  cars  with- 
in the  prescribed  reasonable  length  of  time,  or  at  once  pay 
up  the  demurrage  on  failure  so  to  do. 


In  my  judgment  the  great  shipping  public  is  greatly 
benefited  by  a  rule  of  this  character.  It  should  ever  be 
borne  in  mind  that  a  rule  of  law  should  be  one  that  works 
out  the  greatest  good  to  the  greatest  number.  I  also  hold 
that  the  rule  requiring  the  payment  of  demurage  on  a  car 
at  the  station  of  the  railroad  belonging  to  such  association 
before  the  consignee  can  remove  the  goods,  is  reasonable.  It 
would  hardly  be  fair  to  compel  the  railroad  company  to  go 
to  law  each  time  in  order  to  recover  such  demurrage.  And 
so  I  hold  that  these  rules  are  reasonable,  that  the  answer  sets 
up  a  good  defense,  and  the  demurrer  should  be  and  is  over- 
ruled. 


IN    THE    CIRCUIT    COURT,    SUMMIT    COUNTY. 
STATE  OF  OHIO. 

No.  665,  (11419)  APRIL  TERM,  1905. 


6  Cir.  Ct.  Rep.  N.  $.,  505. 


OPINION  OF  THE  COURT. 


THE;  THOMAS  PHILLIPS  COMPANY,  Plaintiff, 

Z'S. 

THE;  ERIE  RAILROAD  COMPANY,  Defendant. 


MARVIN,  WINCH  AND  HENRY,  //. 

Appeal  from  the  court  of  common  pleas  of  Summit 
County. 

WINCH,  /.: 

Plaintiff  brought  its  action  against  the  Railroad  Com- 
pany, praying  that  the  latter  be  ordered  and  directed  to  im- 
mediately deliver  upon  the  plaintiff's  switch  certain  cars 
consigned  to  plaintiff  and  laden  with  merchandise  belong- 
ing to  it,  and  that  the  railroad  company  be  further  ordered 
and  directed  to  receive  from  certain  other  railroads  and  at 
once  deliver  upon  said  switch  such  further  cars  consigned 
to  plaintiff  as  might  in  the  future  arrive,  either  upon  such 
other  railroads,  or  its  own. 

By  an  amended  and  supplemental  petition  plaintiff  asks 
damages  alleged  to  have  been  occasioned  by  the  railroad 
company's  delay  in  delivering  said  described  cars  upon  said 
switch. 


65 

The  railroad  company,  by  its  amended  answer,  admits 
its  refusal  to  set  certain  cars  upon  plaintiff's  switch,  which 
cars,  it  alleges,  it  placed  upon  a  public  side  track  and  notified 
plaintiff  that  they  were  there  for  its  benefit.  It  then  pleads 
certain  car  service  rules,  as  follows:  Defendant  further 
says  that  prior  to  October  ist,  1902,  in  order  to  secure  the 
speedy  unloading  and  return  of  cars  and  to  avoid  detention 
thereof  by  shippers  and  consignees,  it  made  and  adopted, 
and  through  The  Cleveland  Car  Service  Association  of 
which  it  was  and  is  a  member,  promulgated  rules  providing 
among  other  things,  that  a  charge  of  one  dollar  per  day  or 
fraction  of  a  day  would  be  made  for  delay  to  or  storage  in 
cars  on  all  cars  containing  property  shipped  at  car-load  rates 
for  any  time  beyond  the  so-called  free  time  elapsing  after 
such  cars  should  be  placed  for  unloading,  and  before  the 
same  should  be  unloaded,  Sundays  and  legal  holidays  not 
being  counted  in  the  computation  of  the  time  elapsing,  and 
the  free  time  being  96  hours  for  cars  containing  coal  and 
coke,  and  48  hours  for  cars  containing  other  commodities. 
By  said  rules  it  is  also  provided,  in  substance,  that  when 
cars  are  ordered  to  a  private  siding  for  unloading,  and  the 
party  so  ordering  them  is  delinquent  in  the  payment  of  car 
service  charges,  defendant's  agent  should  decline  to  place 
cars  on  such  private  siding  until  such  delinquency  should  be 
made  good,  and  should  thereupon  notify  the  party  using 
such  private  siding  that  his  freight  would  be  delivered  or 
received  only  upon  the  defendant's  public  team  track  until 
such  delinquency  should  be  made  good. 

Said  rules  were  in  force  continually  from  a  date  prior  to 
October  ist,  1902,  to  and  since  the  commencement  of  this 
action,  and  of  the  plaintiff,  during  such  entire  period,  had 
full  notice  and  knowledge,  and  defendant  says  that  said 
rules  and  said  charges  are  reasonable,  and  other  railroad 
companies,  and  railroad  companies  generally,  have  adopted 
and  enforced  the  same  rules  or  rules  of  like  character. 

Defendant  further  says  that  all  the  shipments  mentioned 
in  the  petition  herein,  and  ordinary  shipments  of  goods  to 
plaintiff,  other  than  of  coal  and  coke,  have  been  made  under 
contracts,  evidenced  by  the  bills  of  lading  under  which  said 
shipments  have  been  made  and  transported.  By  the  con- 
tracts of  shipment  and  bills  of  lading  it  has  been  provided 
that  "The  delivering  carrier  may  make  a  reasonable  charge 


66 

per  day  for  the  detention  of  any  car,  and  for  use  of  track 
after  the  car  has  been  held  48  hours  for  unloading,  and 
may  add  such  charge  to  all  other  charges  hereunder,  and 
hold  said  property  subject  to  a  lien  therefor,"  and  further 
that  "Owner  or  consignee  shall  pay  freight,  and  all  other 
charges  accruing  on  said  property  before  delivery." 

Defendant  further  says  that  in  its  shipments  from  its 
line  of  road  to  said  private  track  occupied  and  used  by 
plaintiff,  for  sometime  prior  to  the  date  referred  to  in  the 
petition,  when  said  cars  were  detained,  the  plaintiff  had  de- 
tained and  held  for  storage  purposes  many  cars  of  the  de- 
fendant delivered  on  said  spur  track  at  plaintiff's  plant,  and 
during  the  month  of  November,  1902,  plaintiff  detained  as 
aforesaid,  ten  cars  an  aggregate  of  ninety  days  over  and 
above  the  free  time  allowed  by  the  rule.  During  the  month 
of  December  it  detained  six  cars  an  aggregate  of  thirty- 
nine  days  over  and  above  the  free  time  allowed  by  the  rule. 
During  the  month  of  January  it  detained  eleven  cars  an  ag- 
gregate of  ninety-four  days  over  and  above  the  free  time  al- 
lowed by  the  rule.  That  the  reasonable  service  charges  for 
November  were  $90.00;  for  the  month  of  December  were 
$39.00;  for  the  month  of  January  $94.00,  and  although  de- 
fendant had  often  requested  plaintiff  to  pay  said  car  charges, 
it  had  positively  refused  to  pay  the  same  or  any  part  thereof. 

The  defendant  further  says  that  in  addition  to  the  de- 
tention of  said  cars  above  recited,  for  a  long  time,  to- wit, 
more  than  two  years  prior  to  the  commencement  of  this  suit, 
that  it  positively  refused  to  recognize  the  rules  of  the  de- 
fendant with  reference  to  the  storage  of  the  cars  as  above 
recited,  but  has  deliberately  and  purposely  detained  cars, 
depriving  the  defendant  of  their  use,  and  plaintiff  in  addi- 
tion has  refused  to  pay  to  the  defendant  the  reasonable  value 
of  the  said  detention  of  cars,  has  denied  and  denies  its  lia- 
bility and  obligation  to  pay  anything  to  the  defendant  for 
detention  of  cars. 

Defendant  says  that  because  of  plaintiff's  refusal  to 
recognize  said  rules,  and  to  pay  any  car  service  charges,  it, 
on  or  about  January  i6th,  1903,  served  due  notice  upon 
plaintiff,  that  it  would  deliver  no  more  freight  upon  said 
plaintiff's  private  track,  after  January  21,  1903,  until  said 


67 

car  service  charges  for  November,  1902,  were  paid,  and  on 
January  26th,  1903,  further  notified  plaintiff  that  it  would 
not  resume  deliveries  upon  said  private  track  till  said  car 
service  charges  for  December,  1902,  were  also  paid;  and 
said  car  service  charges  not  being  paid,  defendant  refused 
to  deliver  upon  said  private  siding  said  three  cars  mentioned 
in  the  petition,  but  it  placed  them  upon  its  regular  public 
team  track  for  plaintiff  to  unload,  and  at  and  up  to  the  time 
of  beginning  this  suit  plaintiff  was  free  to  unload  them  there, 
except  that  as  to  said  car  No.  80115  the  free  time  after  such 
placing  elapsed  before  this  suit  was  begun,  and  car  service 
charges  accrued  thereon,  whereupon  this  defendant  through 
the  medium  of  said  Car  Service  Association  caused  said  car 
to  be  locked  so  that  it  should  not  be  unloaded  till  such 
charges  accruing  thereon  should  be  paid  and  its  lien  there- 
for extinguished  by  such  payment. 

A  demurrer  filed  to  this  amended  answer  raises  the 
question  of  the  reasonableness  of  the  car  service  rules 
pleaded,  and  the  right  of  the  railroad  company  to  enforce 
them. 

That  forty-eight  hours  is  a  reasonable  time  within 
which  a  consignee  should  be  required  to  remove  freight  from 
cars  and  that  the  railroad  company  might  make  a  reasonable 
charge  for  demurrage  upon  failure  to  remove  the  freight 
within  said  time,  was  held  by  this  court  in  the  case  of  The 
N.  Y.  L.  H.  &  W.  R.  R.  Co.  vs.  pie  J.  F.  Seiberling  &  Co., 
at  the  October  term,  1894,  in  this  county. 

In  this  case  we  have  the  additional  question  whether, 
upon  the  refusal  of  the  consignee  to  pay  demurrage  already 
accrued,  the  railroad  company  can  refuse  to  deliver  other 
cars  thereafter  arriving. 

We  think  both  the  rules  were  adopted  by  the  railroad 
company  for  the  one  purpose  alleged  in  the  amended  an- 
swer: "In  order  to  secure  the  speedy  unloading  and  return 
of  cars  and  to  avoid  detention  thereof  by  shippers  and  con- 
signees," and  not  that  the  second  rule  was  adopted  for  the 
purpose  of  enforcing  the  payment  of  demurrage  already  ac- 
crued. That  such  rule  is  reasonable  and  necessary  for  the 


68 

proper  operation  of  defendant's  railroad  is  alleged  in  the 
answer  as  follows:  "Defendant  says  that  in  the  operation 
of  its  railroad  plaintiff  is  required  to  use  a  large  number  of 
cars  of  various  kinds  to  haul  and  carry  the  great  volume  of 
freight  which  is  offered  to  it  for  transportation  as  a  common 
carrier;  and  by  reason  of  the  transportation  of  through 
freight;  that  is,  freight  originating  at  points  beyond  de- 
fendant's railway  for  delivery  at  points  on  its  railway,  large 
numbers  of  cars  owned  by  other  railroads  are  offered  to  the 
defendant  for  transportation,  and  hauled  by  it  over  its  rail- 
road to  point  of  destination  or  for  delivery  to  connecting 
carriers.  That  the  proper  operation  of  its  railway  requires 
that  it  return  to  the  owners  or  to  the  other  carriers,  as  soon 
as  reasonably  possible,  all  foreign  cars  coming  on  its  lines. 
That  for  many  months  prior  to  the  commencement  of  this 
suit,  the  volume  of  freight  transported  over  defendant's 
railroad,  and  over  the  roads  of  other  carriers,  has  been  un- 
precedentedly  large,  and  that  the  proper  handling  of  its 
freight  and  the  discharge  of  its  duties  as  a  common  carrier 
make  it  necessary  that  consignees  of  freight  unload  cars 
with  all  reasonable  dispatch,  and  without  unnecessary  delay, 
that  shippers  and  consignees  do  not  unnecessarily  detain  the 
defendant's  cars. 

The  further  allegation  that  plaintiff  positively  refused 
to  recognize  these  rules  and  deliberately  and  purposely  de- 
tained cars,  depriving  defendant  of  their  use,  in  addition  to 
refusing  to  pay  reasonable  demurrage  charges,  denying  its 
obligation  to  pay  anything  for  the  detention  of  cars,  we 
think  makes  a  defense  in  law  entitling  the  defendant  to  a 
hearing  upon  the  issues  thus  joined. 

The  demurrer  is,  therefore,  overruled. 


GRANT  &  SIEBER, 
Counsel  for  Plaintiff. 

TIBBALS  &  FRANK, 
Caiinscl  for  Defendant. 


SUPERIOR  COURT  OF  PENNSYLVANIA, EASTERN 
DISTRICT. 

OCTOBER,  1904. 


27  Pa.  Sup.  Ct.  5/7. 

BALTIMORE  &  OHIO  RAILROAD  COMPANY 

vs. 
GRAY'S  FERRY  ABATTOIR  COM  PAN  Y,  Appellant. 


APPEAL  BY  DEFENDANT  FROM  THE  JUDGMENT  OF  THE  COURT 
OF  COMMON  PLEAS,  No.  5,  OF  PHILADELPHIA  COUNTY, 
OF  MARCH  TERM,  1904,  No.  1660. 


WM.  FINDLEY  BROWN,  Attorney  for  Baltimore  &  Ohio 
R.  R.  Co. 

FRANK  R.  SHATTUCK,  Attorney  for  Defendant. 


PLAINTIFF'S  CLAIM. 

The  claim  of  the  Baltimore  &  Ohio  Railroad  Company 
in  this  case  was  that  it  had  established  a  charge  of  $1.00  per 
car  per  day  for  the  detention  of  its  cars  by  consignees  be- 
yond forty-  eight  hours  after  arrival,  and  that  it  is  a  rea- 
sonable and  valid  regulation ;  that  the  defendant  company 
failed  to  unload  and  detained  certain  cars,  delivered  to  it 
over  the  plaintiff's  line,  beyond  forty-eight  hours  after  ar- 
rival, and  therefore  it  sued  to  recover  the  amount  of  such 
charges.  It  had  attached  to  its  statement  of  claim  certain 
schedules,  which  specifically  show  how  its  claim  was 
made  up. 


70 

DEFENDANT'S  AFFIDAVIT  OF  DEFENSE. 

In  the  affidavits  of  defense  filed  by  the  defendant  the 
facts  set  forth  therein  may  be  briefly  summarized  as  follows : 

(a)  That  defendant  was  never  notified  of  the  said 
rules  of  the  plaintiff;  never  agreed  to  be  bound  or  become 
liable  thereunder,  and  the  same  never  became  a  contract 
between  the  plaintiff  and  defendant. 

(b)  That  said  rules  are  not  reasonable  and  valid  reg- 
ulations ;  but,  on  the  contrary,  are  unreasonable  and  invalid. 

(c)  That  said  rules  are  not  necessary  to  carry  out  the 
provisions  of  Article  17,  Section  3,  of  the  Constitution  of 
Pennsylvania;  that  contracts  in  regard  to  the  carrying  of 
coal  in  cars  over  plaintiff's  line,  consigned  to  the  defendant, 
were  made  between  plaintiff  and  consignor. 

(d)  That  defendant  promptly  unloaded  all  cars  de- 
livered to  it  by  the  plaintiff,  and  all  defaults  in  regard  to  the 
detention  of  such  cars  were  caused  entirely  by  the  plaintiff. 

(e)  That  it  was  agreed  between  the  plaintiff  and  de- 
fendant that  the  former  should  deliver  not  over  two  cars  of 
coal  per  week  to  its  plant,  but  in  violation  thereof,  during 
some  weeks,  the  plaintiff  failed  to  deliver  any  cars  whatso- 
ever, and  at  other  times  delivered  more  than  two  cars  per 
week. 

(/)  That  in  such  cases  as  plaintiff  claims  the  defend- 
ant detained  its  cars,  it  failed  and  neglected  itself  to  take 
away  and  remove  empty  cars  upon  the  tracks  in  its  plant 
before  delivering  full  ones  upon  the  same  tracks,  so  that  the 
first  ones  so  delivered  could  not  be  removed  until  the  next 
ones  delivered  were  unloaded. 

(g)  That  the  matter  of  delivering  and  removing  cars 
was  entirely  within  the  power  of  the  plaintiff  company,  and 
that  no  contract  or  engagement  existed  between  the  plaintiff 
and  defendant,  whereby  the  latter  was  in  any  way  required 
either  to  deliver  or  remove  said  cars. 


(h)  That  in  no  instance  was  the  defendant  notified  by 
the  plaintiff  of  the  arrival  of  cars  at  the  East  Side  Station 
of  the  plaintiff,  and  it  was  at  all  times  without  knowledge 
of  such  arrival  until  the  delivery  thereof  by  the  plaintiff  to 
the  defendant  at  the  plant  of  the  latter,  and  that  such  deliv- 
eries were  made  under  the  agreement  to  deliver  to  the  plain- 
tiff two  cars  of  coal  per  week. 

(i)  That  the  defendant  is  not  informed  as  to  what  is 
meant  by  the  entries  under  the  terms  "ordered,"  "released" 
and  "detained,"  as  printed  upon  the  forms  used  in  the  ex- 
hibits attached  to  plaintiff's  statement,  but  denies  that  such 
entries  respectively  represent  the  times  when  the  defendant 
ordered  cars  delivered,  or  such  cars  were  unloaded  by  it,  or 
wyere  in  the  possession  of  the  defendant  by  reason  of  any 
failure  on  its  part  to  unload  the  same. 

(/)  That  the  defendant  does  not  possess  detailed  in- 
formation in  regard  to  each  particular  car  mentioned  in  the 
exhibits  attached  to  plaintiff's  statement,  but  that  the  same 
is  in  the  possession  of  the  plaintiff  and  not  of  the  defendant, 
and,  therefore,  the  plaintiff  should  be  required  to  make  proof 
thereof  before  a  jury. 

It  will  be  seen  from  the  above  summary  of  the  aver- 
ments of  the  respective  parties  that  the  plaintiff  makes  a 
claim  for  detention  of  cars  by  the  defendant,  according  to 
rules  which  the  plaintiff  established,  but  of  which  the  de- 
fendant had  no  knowledge  or  information  until  this  suit  was 
brought.  The  defendant,  after  denying  that  such  rules  are 
reasonable  or  necessary,  sets  forth  as  specifically  as  it  can 
that  it  did  not  in  any  of  the  cases  detain  the  cars  of  the 
plaintiff.  If  the  delays  did  occur  as  claimed  by  the  plaintiff, 
they  were  caused  altogether  by  its  own  failure  to  deliver 
cars  as  agreed  or  to  take  away  the  cars  after  they  were  un- 
loaded. 

All  questions  involved  were  fully  argued,  not  only  in 
printed  briefs  submitted  by  both  sides,  but  in  oral  argument. 
Upon  the  appeal,  the  Court  by  a  unanimous  decision  af- 
firmed the  judgment  of  the  lower  Court  for  the  plaintiff  and 
handed  down  an  opinion  of  more  than  usual  interest  to  car 
service  associations. 


72 

OPINION   OF  THE   COURT. 

Opinion  by  SMITH,  /. 
Filed  March  14,  1905. 

This  case  is  ruled  by  Pennsylvania  Railroad  Company 
vs.  Midvale  Steel  Company,  201  Pa.  624,  which  it  closely 
resembles,  both  in  general  character  and  in  its  chief  details. 
That  case  is  an  authority  that  settles  the  right  of  a  carrier 
by  rail  to  establish  a  rule  fixing  a  reasonable  charge  for  the 
detention  of  cars  after  a  sufficient  period  for  unloading, 
without  specific  notice  to  shippers  or  consignees ;  and  in  this 
case,  as  in  that,  "the  rule  is  manifestly  a  reasonable  one,  both 
as  to  time  and  charge."  The  only  question  presented  here  is 
whether  the  affidavit  of  defense  sets  forth,  specifically,  facts 
that  constitute  a  defense  to  the  specific  items  of  the  plain- 
tiff's claim. 

The  declaration  states  the  several  items  of  charge,  em- 
bracing in  each  the  car  number,  the  date  of  arrival,  of  deliv- 
ery and  of  release,  the  number  of  days  each  car  was  de- 
tained, and  the  amount  claimed  for  detention.  The  affidavit 
of  defense,  so  far  as  it  sets  forth  matters  that  have  been  set- 
tled by  the  case  cited,  need  not  be  considered.  Its  further 
allegations  are  general  and  indefinite,  and  it  fails  to  meet, 
specifically,  any  item  of  the  plaintiff's  claim.  It  was  the 
plaintiff's  duty,  as  a  carrier,  to  transport  and  deliver  all  coal 
consigned  to  the  defendant.  It  was  the  defendant's  duty, 
unless  relieved  therefrom  by  agreement  with  the  carrier,  to 
provide  itself  with  the  necessary  facilities  for  the  prompt 
unloading  and  return  of  the  plaintiff's  cars.  If  the  number 
of  cars  consigned  to  it  was  so  large  as  to  make  this  imprac- 
ticable, it  should  limit  its  shipments  to  its  capacity  for  deal- 
ing with  them,  or  pay  charges  for  delay.  From  the  usual 
methods  of  business,  the  defendant  must  be  presumed  to 
have  controlled  the  quantity  of  coal  shipped  on  its  order; 
and  no  lack  of  such  control  is  suggested  in  the  affidavit. 

So  far  as  appears  from  the  declaration  and  affidavit, 
the  cars  for  which  the  charge  is  made,  shown  in  the  exhibit 
attached  to  the  declaration,  are  all  the  cars  that  were  deliver- 


73 

ed.  The  affidavit  alleges  an  agreement  with  the  plaintiff  by 
which  only  two  cars  a  week  were  to  be  delivered,  and  that, 
as  shown  by  the  exhibit,  the  plaintiff  "violated  this  agree- 
ment, and  at  times  failed  to  deliver  any  cars  during  some 
weeks,  and  at  other  times  delivered  many  more  than  two 
cars  per  week."  The  exhibit,  however,  is  far  from  bearing 
out  the  allegation  of  excessive  delivery.  It  sets  forth  the 
delivery  of  cars  as  follows  :  April  4th,  2 ;  June  2Oth,  4 ;  July 
3Oth,  i ;  August  6th,  I5th,  22d  and  3ist,  each  2;  September 
8th  and  i6th,  each  2 ;  22d,  28th  and  October  2d,  each  I ; 
October  I3th,  2Oth,  2/th  and  November  4th,  each  2 ;  No- 
vember 1 2th,  i ;  2Oth,  2 ;  27th,  December  I5th  and  i8th,  each 
i.  This  shows  a  delivery  of  more  than  two  cars  in  a  week 
in  but  a  single  instance,  and  frequently  a  delivery  of  only 
one  car  in  a  week.  Unless  the  two  cars  per  week  were  to 
consist  of  a  semi-weekly  delivery  of  one  car — which  is  not 
alleged  in  the  affidavit — the  agreed  limit  was  substantially 
observed.  Further,  it  does  not  appear  from  the  affidavit 
that  the  defendant  ever  complained  of  any  violation  of  the 
alleged  agreement,  or  refused  to  receive  more  than  the  num- 
ber of  cars  it  provided  for.  It  was  entirely  competent  for 
the  defendant  to  waive  its  observance ;  and  in  accepting  all 
cars  consigned  to  it,  without  objection,  it  must  be  regarded 
as  having  waived  it. 

Judgment  affirmed. 


74 


STATE  OF  MISSISSIPPI,  SUPREME  COURT. 
NOVEMBER,  A.  D.  1904. 


37  So.  Rep.  939.    (Miss.  1905.) 

THE  YAZOO  &  MISSISSIPPI  VALLEY  RAILROAD  COMPANY 

vs. 
C.  J.  SEARLES. 


OPINION  OF  THE  SUPREME  COURT  OF  MISS., 
FEBRUARY  20,  1905,  BY  TRULY,  /. 


No.  11,245 
YAZOO  &  MISSISSIPPI  VALLEY  RAILROAD  COMPANY 

vs. 

C.  J.  SEARLES. 
TRULY,  /. 

Stated  in  chronological  sequence,  the  facts  giving  rise 
to  this  litigation  are  as  follows : 

On  October  1st,  1900,  under  the  firm  style  of  Searles 
Bros.,  C.  J.  Searles  and  T.  M.  Searles,  commenced  business 
in  Vicksburg,  Miss.  At  that  time,  and  for  several  years 
before  then,  the  delivery  of  cars  and  the  assessing  of  de- 
murrage for  detention  thereof  by  consignees  of  freight,  had 
been  under  the  direction  of  the  Louisiana  Car  Service  Asso- 
ciation, of  which  N.  S.  Hoskins  was  manager.  Of  this  car 
service  association  both  the  railroads  entering  the  city  of 
Vicksburg,  were  members.  On  December  8th,  1900,  C.  J. 
Searles,  the  managing  partner  of  the  firm  of  Searles  Bros., 
wrote  to  N.  S.  Hoskins,  requesting  leniency  on  the  part  of 
the  Car  Service  Association  in  consideration  of  his  prompt- 
ness in  handling  the  largest  part  of  his  business,  and  in 
view  of  the  fact  that  he  was  then  laboring  under  the  disad- 


75 

vantage  of  not  being  able  to  secure  an  available  warehouse  in 
which  to  unload  freight  which  might  be  consigned  to  his 
firm  in  car  load  lots.  From  this  date,  until  April,  1902,  the 
record  fails  to  disclose  any  variance  in  regard  to  the  ques- 
tion of  demurrage  or  car  service  between  the  firm  of  Searles 
Bros,  and  the  Car  Service  Association  or  either  of  the  rail- 
roads over  which  that  firm  received  freight.  From  April 
until  August  28th,  1902,  C.  J.  Searles,  doing  business  as 
Searles  Bros.,  and  as  successor  to  the  Southern  Brokerage 
Company,  positively  refused  to  pay  any  more  car  service 
or  demurrage  charges  and  announced  his  deliberate  deter- 
mination not  to  recognize  in  any  manner  the  authority  of 
the  car  service  association  or  its  employees  to  assess  said 
charges,  and  refused  to  have  any  conference  in  regard 
thereto  with  the  manager  or  the  local  agent  thereof.  Fre- 
quent overtures  were  made  to  Searles  by  representatives, 
both  of  the  railroads  and  of  the  Car  Service  Association, 
seeking  to  arrive  at  some  amicable  adjustment  of  the  pend- 
ing dispute  in  reference  to  car  service  charges  previously 
accrued,  conditioned  only  that  Searles  would  in  the  future 
recognize  and  comply  with  the  rules  of  the  Car  Service  As- 
sociation in  reference  to  demurrage  charges.  All  proposi- 
tions of  settlement  or  of  arbitration  were  rejected  by  C.  J. 
Searles,  who  firmly  adhered  to  his  announced  decision  of 
not  recognizing  the  authority  to  any  extent  of  the  Car  Ser- 
vice Association.  While  this  condition  of  affairs  existed, 
on  August  28th,  1902,  after  first  submitting  the  proposed 
order  to  the  Division  Superintendent  of  the  Yazoo  &  Mis- 
sissippi Valley  Railroad  Company,  and  receiving  his  ap- 
proval thereof,  N.  S.  Hoskins,  Manager  of  the  Louisiana 
Car  Service  Association,  directed  that  no  cars  should  there- 
after be  switched  to  the  warehouse  where  Searles  Bros,  and 
the  Southern  Brokerage  Company  transacted  business  or 
businesses.  This  warehouse,  which  Searles  had  secured 
subsequently  to  the  writing  of  his  letter  to  Hoskins  herein- 
before referred  to,  was  located  on  a  spur  belonging  to  the 
Yazoo  &  Mississippi  Valley  Railroad  Company,  on  which 
were  also  situated  the  warehouses  of  nearly  all  of  Searles 
Bros.'  chief  competitors  in  the  business  in  which  all  were 
engaged — wholesale  produce,  commission  and  brokerage. 
For  many  years  it  had  been  the  custom  of  the  Yazoo  &  Mis- 
sissippi Valley  Railroad  Co.,  to  switch  freight  received  in 
car  loads  to  the  warehouses  of  the  consignees.  After  Oc- 


76 

tober,  1902,  £.  J.  Searles  continued  business  as  successor  of 
the  Southern  Brokerage  Company,  managing  partner  of 
Searles  Bros.,  composed  of  himself  and  his  brother  T.  M. 
Searles,  and  as  C.  J.  Searles  &  Co.,  composed  of  himself 
alone.  All  these  businesses  were  conducted  at  the  same 
warehouse  and  the  refusal  to  switch  cars  or  freight  applied 
to  all  alike.  From  August  28th,  1902,  the  date  of  the  is- 
suance of  the  order  declining  to  further  switch  cars,  until 
March  9th,  1903 ;  the  Yazoo  and  Mississippi  Valley  Rail- 
road Company,  acting  under  said  order  issued  by  the  mana- 
ger of  the  Car  Service  Association  with  the  approval  of  its 
Superintendent,  uniformly  refused  to  place  cars  of  freight 
at  Searles'  warehouse,  but  continued  as  theretofore  to 
switch  all  freight  in  car  load  lots  to  other  merchants  en- 
gaged in  similar  business  occupying  warehouses  similarly 
located.  The  Yazoo  &  Mississippi  Valley  Railroad  did 
however,  furnish  to  Searles  upon  request  empty  cars  for 
the  shipment  of  freight  from  his  warehouse  to  other  points, 
and  did,  with  one  exception,  transfer  all  cars  received  over 
its  road  to  the  Ala.  &  V.  R.  R.  when  so  directed  by  Searles. 
On  March  9th,  1903,  the  Chancery  court  granted  to  Searles 
a  mandatory  injunction  commanding  the  Yazoo  &  Missis- 
sippi Valley  Railroad  Company,  to  switch  and  place  at 
Searles'  warehouse,  freight  received  in  car  load  lots  in  the 
same  manner  that  it  did  freight  received  for  his  competitors 
in  business  also  occupying  warehouses.  Pending  this  suit, 
and  prior  to  final  hearing,  an  agreement  was  entered  into 
by  which  Searles  and  the  railroad  company  each  agreed  to 
pay  any  demurrage  which  might  fall  due  thereafter  under 
the  rules  governing  that  matter,  such  payment  to  be  with- 
out prejudice  to  the  rights  of  either  party  in  the  pending 
litigation.  Thereupon  C.  J.  Searles,  in  the  name  of  C.  J. 
Searles  &  Co.,  filed  his  declaration  in  the  Circuit  Court 
against  the  Yazoo  &  Mississippi  Valley  Railroad  Company 
claiming  that  between  the  date  of  August  28th,  1902,  when 
first  refusal  to  place  cars  was  made,  up  to  the  date  of  the 
filing  of  the  suit,  the  Yazoo  &  Mississippi  Valley  Railroad 
had  received  over  its  own  line  and  refused  to  switch  and 
place  at  his  warehouse,  or  had  refused  to  receive  from  the 
Alabama  &  Vicksburg  Railroad  and  switch  and  place  at  his 
warehouse  one  hundred  and  thirty-five  cars  of  freight  in 
car  load  lots,  bv  reason  of  which  action  he  had  been  com- 
pelled to  receive  his  freight  on  the  wagon  and  delivery 


;    •  77 

tracks  of  the  Yazoo  &  Mississippi  Valley  Railroad,  all  some 
distance  from  his  warehouse,  entailing  on  him  an  additional 
expense  for  labor,  draying  and  extra  clerk  hire,  of  $1,905.05, 
and  he  also  claimed  in  his  declaration  a  statutory  penalty 
of  five  hundred  dollars  for  each  car  load  of  freight  which 
the  railroad  had  refused  to  switch  and  place  at  his  ware- 
house, averring  that  the  railroad  and  the  Car  Service  Asso- 
ciation had  discriminated  against  him ;  that  the  Car  Service 
Association  was  a  "trust"  or  "combine"  within  the  meaning 
of  the  Mississippi  statute  in  that  regard,  whereby  he  was 
entitled,  as  the  injured  party,  to  receive  the  penalty  allowed 
under  the  statute.  The  case  was  tried  before  the  Circuit 
Judge,  a  jury  being  waived.  In  addition  to  the  foregoing 
facts,  it  developed  upon  the  hearing,  that  Searles  alone  of 
all  merchants  in  Vicksburg  engaged  in  similar  business, 
refused  to  recognize  the  authority  of  the  Car  Service  Asso- 
ciation ;  that  while  disputes  over  bills  had  from  time  to  time 
arisen  between  other  merchants  and  the  railroads  in  refer- 
ence to  the  correctness  of  several  assessments  of  demurrage 
charges,  that  such  disputes  had  been  adjusted  or  were  in 
process  of  adjustment,  and  that  no  order  had  been  issued 
refusing  to  switch  cars  for  any  other  merchant,  though  such 
order  had  been  threatened  in  several  instances  when  the  set- 
tlements had  been  unduly  delayed.  It  is  undisputed  in  the 
record  that  cars  would  have  been  switched  for  Searles  had 
he  agreed  to  pay  demurrage  charges  when  the  same  might 
rightfully  accrue  under  the  rules  of  the  Car  Service  Asso- 
ciation. It  was  further  in  evidence  that  the  Louisiana  Car 
Service  Association  operated  solely  in  regard  to  the  assess- 
ment of  demurrage  under  rules  in  reference  thereto,  adopted 
and  promulgated  by  the  Mississippi  Railroad  Commission, 
and  that  car  service  charges  were  not  claimed  except  under 
the  circumstances  authorizing  under  said  rules  the  collection 
thereof.  That  the  order  refusing  to  have  cars  switched  and 
placed  for  Searles  was  issued  not  by  order  of  the  Executive 
Board  of  the  Car  Service  Association  or  with  its  knowledge, 
but  by  its  manager,  after  the  same  had  been  submitted  to 
and  approved  by  the  Division  Superintendent  of  the  Yazod 
&  Mississippi  Valley  Railroad  and  was  issued  solely  for  the 
purpose  of  enforcing  compliance  on  the  part  of  Searles  to 
the  rules  of  the  Mississippi  Railroad  Commission  authoriz- 
ing the  collection  of  demurrage  under  certain  stated  cir- 
cumstances. The  Circuit  Judge  held  that  the  Car  Service 


78 

Association  was  a  trust  and  combine  within  the  meaning  of 
Chapter  88  of  the  Acts  of  1900,  and  awarded  Searles  dam- 
age for  $60,861.30  being  the  statutory  penalty  for  each  cer 
of  freight  which  the  railroad  had  refused  to  place  at  his 
warehouse,  and  in  addition  thereto,  the  amount  paid  out  for 
the  drayage  and  handling  of  the  freight  contained  therein. 
From  this  judgment  the  Yazoo  &  Mississippi  Valley  Rail- 
road Company  appeals. 

The  first  Question  presented  for  consideration  in  arriv- 
ing at  a  decision  in  this  case  is :  What  is  a  "trust"  or  "com- 
bine" within  the  meaning  and  condemnation  of  the  statute 
cited?  A  determination  of  this  question  necessitates  a  brief 
examination  at  least,  of  the  history  of  anti-trust  legislation 
in  our  State. 

Section  198,  Constitution  1890,  commands  the  legisla- 
ture to  "enact  laws  to  prevent  all  trusts,  combinations,  con- 
tracts, and  agreements  inimical  to  the  public  welfare." 

It  must  be  observed  at  the  outset,  that  not  all  trusts, 
combinations,  contracts  and  agreements  were  to  be  prohi- 
bited because  the  great  law-makers  who  framed  the  funda- 
mental law  of  this  commonwealth,  as  the  same  is  embodied 
in  our  present  constitution,  well  knew  that  such  legislation 
would  be  palpably  trenching  upon  if  not  absolutely  violative 
of  the  inherent  rights  of  the  citizen,  and  would  be  restrictive 
to  an  unwarranted  degree  of  the  privilege  of  contract  which 
every  man  is  entitled  to  enjoy  under  our  form  of  govern- 
ment. Tiedeman,  Lim.  Police  Powers,  244.  No  such  legis- 
lation was  authorized  because  no  such  legislation  was  de- 
manded. Only  such  trusts,  combinations,  contracts  and 
agreements  were  to  be  prevented  as  would  be  "inimical  to 
the  public  welfare." 

Acting  under  this  authority  Sec.  4437  Code  1892  was 
adopted  providing  that  a  trust  or  combine  is  a  combination, 
contract,  understanding  or  agreement  expressed  or  implied 
between  two  or  more  persons,  corporations  or  firms  and 
association  of  persons  or  between  one  or  more  of  either  with 
one  or  more  of  the  others  to  do  certain  things  therein 
enumerated,  amongst  others  (g)  "to  place  the  control  to 
any  extent,  of  business  or  of  the  products  of  earnings  there- 
of, in  the  power  of  trustees,  by  whatever  name  called; 
"[h]"  by  which  any  other  person  than  themselves,  their 


79 


proper  officers,  agents,  and  employees  shall,  or  shall  have 
the  power  to,  dictate  or  control  the  management  of  business. 

And  having  enumerated  the  various  kinds  of  contracts 
which  were  denominated  trusts  and  combines  the  section 
proceeds  to  declare  them  to  be  ''inimical  to  the  public  wel- 
fare, unlawful,  and  a  criminal  conspiracy."  An  analytical 
study  of  this  section  demonstrates  that  it  was  the  legislative 
design  to  prohibit  and  provide  punishment  for  the  formation 
of  any  criminal  conspiracy  by  which  the  interest  of  the  pub- 
lic might  be  in  any  manner  injured  or  jeopardized;  whether 
such  combination  was  intended  to  bo  in  restraint  of  trade, 
to  limit,  reduce  or  increase  the  price  or  the  production  of  any 
commodity,  or  to  hinder  competition  in  the  importation, 
manufacture,  transportation,  sale  or  purchase  of  any  com- 
modity, or  to  do  certain  other  enumerated  acts,  which  would 
in  the  judgment  of  the  legislature,  prove  prejudicial  to  the 
interest  of  the  public  or  any  part  thereof,  or  of  any  individ- 
ual. The  reason  for  this  legislation  being,  as  is  so  aptly 
phrased  by  Whitfield,  J :  (Insurance  Company  vs.  State,  75 
Miss.  24.)  that  "conspiracies  of  this  class  are  raised  to  the 
grade  of  felony  and  pronounced  obnoxious  to  the  public 
policy  of  this  state,  and  inimical  to  the  public  walfare  by 
reason  of  the  great  mischief  they  are  known,  of  all  men,  to 
accomplish,  as  manifested  by  the  course  of  legislation  and 
decision  the  country  over.  Such  trusts  constitute  one  of  the 
greatest  menaces  to  public  welfare  known  to  modern  times, 
and  the  legislature  has  wisely  made  them  felonies  and  de- 
nounced this  severe  penalty  against  them."  The  design  of 
the  legislature  was  to  protect  the  public,  not  to  unlawfully 
restrict  the  transacting  of  business  by  either  corporations  or 
individuals.  The  various  kinds  of  legitimate  business  ren- 
dered necessary  by  the  multiform  demands  of  public  con- 
venience, the  manifold  callings  which  are  an  incident  of  this 
progressive  age,  all  demand  that  the  individual  right  of  con- 
tract shall  be  given  full  sway,  conditioned  only  that  the 
rights  of  the  public  and  the  welfare  of  the  people  and  the 
public  policy  of  the  state  shall  be  held  sacred.  Says  Terral, 
J.  (Hock  vs.  Wright,  77  Miss.  482):  "The  legislature  by 
the  chapter  on  trusts  and  combines  did  not  intend  to  debar 
a  person  from  conducting  his  own  private  business  accord- 
ing to  his  own  judgment."  In  this  connection  Whitfied,  J : 
— in  Insurance  Company  vs.  State,  supra,  says:  "It  (the 


8o 

legislature)  therefore  prohibited  any  trust  whose  object  was 
to  place  the  control  of  any  business  in  the  power  of  trustees, 
where  the  effect  of  such  trust  should  be  to  injure  the  public 
or  any  particular  person  or  corporation  in  this  State.  Such 
legislation  has  become  very  general  in  the  United  States, 
owing  to  the  pernicious  results  of  such  trusts/'  It  appears, 
therefore,  from  these  previously  announced,  well  considered 
and  strikingly  accurate  statements  of  the  scope  and  purpose 
of  the  law  by  this  court,  that  one  of  two  things  must  exist  in 
order  to  render  a  contract  or  agreement  between  two  or 
more  persons  or  corporations  subject  to  the  condemnation  of 
paragraphs  (g)  and  (h)  of  the  Act  now  under  consider- 
ation :  First,  it  must  place  the  control  to  some  extent  of  the 
business  or  of  the  products  or  earnings  thereof,  or  it  must 
give  the  power  to  conduct  or  control  the  management  of 
such  business  to  trustees  or  persons  other  than  the  proper 
officers,  agents  or  employees  of  the  contracting  persons  or 
corporations,  or,  second,  it  must  have  the  effect  of  injuring 
the  public  or  some  particular  person  or  corporation  in  this 
State. 

The  correctness  of  the  definition  which  recognizes  that 
a  "combine"  to  fall  within  the  purview  of  the  legislative 
design  must  have  as  a  constituent  element  either  a  viola- 
tion of  public  policy  in  that  it  tends  to  create  a  monopoly 
or  is  in  restraint  of  trade,  or  that  it  involves  a  delegation  and 
abandonment  of  corporate  powers  and  is  inimical  to  the  pub- 
lic welfare,  is  emphasized  and  made  more  manifest  by  refer- 
ence to  legislation  dealing  with  this  subject  enacted  subse- 
quent to  the  adoption  of  Code,  Sec.  4437  hereinbefore  cited. 
The  purpose  of  the  legislature  of  this  State,  the  object  it 
had  in  view,  the  evil  it  sought  to  prevent,  appear  in  the  title 
given  in  conformity  to  the  constitutional  requirements  as  set- 
ting forth  the  subject  matter  dealth  with,  to  Chapter  88,  Acts 
1900,  which  is  the  latest  expression  of  legislative  will.  That 
Act  is  entitled  "An  Act  to  define  trusts  and  combines,  to 
provide  for  the  suppression  thereof,  and  to  preserve  to  the 
people  of  this  state  the  benefits  arising  from  competition  in 
business."  And  the  same  intention  is  again  declared  in  Sec. 
ii  of  the  Act  which  directs  that  it  shall  be  liberally  con- 
strued to  the  end  that  trusts  and  conbines  may  be  suppressed 
and  the  benefits  arising  from  competition  in  business  pre- 
served to  the  people  of  this  state.  The  benefits  which  the 


8i 

legislature  sought  to  secure  to  the  people  of  the  state  were 
those  which  naturally  flow  from  competition  in  business.  In 
order  to  insure  these  benefits  it  was  provided  that  any  con- 
tract entered  into  between  two  or  more  persons  or  corpor- 
ations should  be  unlawful,  if  it  in  any  wise  restrained  or 
decreased  the  advantages  known  to  arise  from  competition 
in  business,  whether  such  contract  was  expressly  and  openly 
in  restraint  of  trade,  or  whether  by  its  effect  it  was  indirectly 
liable  to  reduce  or  increase  prices,  to  increase  or  reduce  pro- 
duction, to  engross  or  forestall  or  to  hinder  competition  in 
production,  manufacture,  transportation,  sale  or  purchase  of 
any  commodity.  All  contracts,  whether  expressed  or  im- 
plied, which  would  necessarily  or  probably  have  any  of  the 
effects  therein  forbidden  were  declared  to  be  violative  of  the 
announced  public  policy  of  the  state  in  that  they  inevitably 
tended  to  reduce  the  benefits  sought  to  be  insured  by  the 
Act.  It  was  also  forbidden  for  any  two  or  more  persons  or 
corporations  to  issue,  own  or  hold  the  certificates  of  stock 
of  any  trust  or  combine.  This  provision  was  clearly  aimed 
at  the  well  known  plan  by  which  the  stock  of  various  cor- 
porations surrendering  their  own  corporate  entity,  engaged 
in  a  partnership  of  their  own ;  such  arrangements  being  pal- 
pably in  restraint  of  trade  and  tending  inevitably  to  the  cre- 
ation of  a  monopoly.  It  was  further  provided  by  paragraphs 
(g)  and  (h)  that  it  should  be  unlawful  for  two  or  more  per- 
sons, firms  or  corporations  or  one  or  more  of  either  with  one 
or  more  of  the  other,  to  form  any  contract  or  combination 
by  which  the  power  to  dictate  or  control  the  management  of 
the  business,  or  by  which  the  control  of  the  business  or  of 
the  products  and  earnings  thereof,  was  placed  in  the  power 
of  any  other  person  than  their  own  proper  officers,  agents 
and  employees.  These  paragraphs  are  a  rescript  of  the  pro- 
visions originally  contained  in  Sec.  4437  supra.  It  should 
be  observed  that  these  paragraphs,  and  in  fact  the  whole 
chapter,  deal  with  both  corporations  and  individuals  alike. 
And  in  construing  such  statutes  the  general  rule  is  that  the 
nature  of  the  business  contemplated  by  the  contract  or  ar- 
rangement, and  the  tendency  of  the  contract  as  affecting  the 
public,  rather  than  whether  the  parties  to  the  contract  are 
corporations  or  individuals,  are  to  be  considered  in  deter- 
mining whether  it  violates  public  policy. 

Hirschl.    Combination,    Consolidation    and    Succession 
of  Corporations,  p.  2. 


82 

This  consideration  eliminates  from  this  discussion  the 
question  of  to  what  extent  limitations,  upon  the  power  to 
contract,  may  be  placed  by  the  state  upon  corporations, 
solely  and  only,  in  a  proper  exercise  of  its  reserved  police 
power.  When  analyzed  the  propositions  contained  in  the 
paragraphs  cited  are  not  novel;  they  are  in  truth,  but  mere 
announcements  of  familiar  principles  contained  in  varying 
form  in  many  statutes  germane  to  this  subject.  They,  and 
all  the  provisions  of  the  Act,  are  but  means  to  an  end, 
details  of  the  legislative  plan.  The  result  desired,  the  pur- 
pose of  the  entire  legislation,  was  to  suppress  trusts,  secure 
the  benefits  arising  from  competition  in  trade,  prevent 
monopolies  and  protect  the  people  from  the  possible  tyranny 
and  oppression  of  combined  wealth.  In  fact  a  brief  investi- 
gation will  show  that  all  modern  anti-trust  legislation  is 
based  upon  the  same  fundamental  principle.  All  combin- 
ations are  forbidden,  the  necessary,  natural  or  probable  con- 
sequence of  which  will  be  to  increase  or  decrease  the  price 
of  production  of  any  commodity,  or  which  restrict  facilities 
in  the  handling  or  transportation  of  the  same.  Contracts  or 
agreements,  of  whatever  character,  by  which  the  autonomy 
of  corporations  is  surrendered  and  the  exercise  of  their 
charter  powers  delegated  to  others  are  denounced  as  viola- 
tive  of  public  policy.  Corporations  which  enjoy  no  powers 
except  those  of  which  they  are  recipients  by  charter  grant, 
are  without  power  to  absolve  themselves  from  the  perform- 
ance of  their  duties  to  the  public,  and  contracts  abnegating 
such  performance  and  alienating  the  powers  granted  them 
by  the  state,  are  void.  Central  Transportation  Co.  vs.  Pull- 
mans Palace  Car  Co.,  139  U.  $.  55  L.  Ed.  55;  Ray  Con- 
tractual Limitations,  p.  240. 

Arrangements  under  whatever  guise,  by  which  the 
stock  of  several  distinct  corporations  is  placed  in  the  hands 
of  certain  trustees  who  are  vested  with  power  of  voting  it, 
are  condemned  as  tending  inevitably  to  the  creation  of  mon- 
opolies, and  the  absolute  destroying  of  competition  in  the 
production  or  transportation  of  many  commodities,  and  as 
a  direful  result,  a  few  individuals  would  be  able  to  fix  the 
price  of  the  very  necessities  of  life,  with  power  to  increase 
or  decrease  without  regard  to  supply  or  demand,  but  solely 
as  their  greed  and  rapacity  might  dictate.  The  wisdom  of 
such  legislation  and  the  imperative  necessity  of  its  strict  en- 


83 

forcement  is  evidenced  by  the  fact  that  the  aggressions  of 
mighty  aggregations  of  corporate  wealth  so  formed  now 
constitute  one  of  the  gravest  problems  with  which  the 
nation  has  to  deal.  Northern  Securities  Co.' vs.  U.  S.  43  L. 
Ed.  698;  Pearson  vs.  Great  Northern  R.  R.  Co.,  U.  S.  40  L. 
Ed.  838 

In  short,  without  unduly  extending  these  observations 
the  formation  of  all  contracts  and  combinations  is  con- 
demned by  which  corporations  or  individuals  are  banded 
together  for  any  illegal  purpose,  or  if  such  association  be 
already  in  existence  the  parties  will  be  inhibited  from  con- 
tinuing operations  thereunder. 

But,  at  last  the  test,  and  only  test,  is,  not  what  the 
intent  of  the  parties  may  be,  not  what  form  the  combin- 
ation has  taken,  but  what  will  its  probable  effect  be  ? 

If  unlawful  or  oppressive,  if  obnoxious  to  public  policy, 
if  inimical  to  public  welfare,  they  will  be  denounced  and 
punishment  meted  out  to  every  participant ;  otherwise,  courts 
will  not  limit  or  restrict  the  inalienable  right  of  contract,  and 
will  not  interfere  unless  the  violation  of  law  be  apparent  or 
the  apprehended  evil  effect  assume  some  tangible  form. 
Noyes,  Intercorporate  Relations,  Sections  392,  401,  405. 

We  uphold  and  maintain  in  its  full  integrity  the  doc- 
trine which  recognizes  the  right  of  the  state  in  the  exercise 
of  its  reserved  police  power  to  restrict  the  power  of  corpor- 
ations to  contract  within  certain  prescribed  limits,  and  which 
forbids  that  such  power  should  ever  be  so  abridged  or  so 
construed  as  to  permit  corporations  to  conduct  their  business 
in  such  manner  as  to  infringe  upon  the  rights  of  individuals 
or  the  general  well  being  of  the  state.  That  power  inheres 
in  the  sovereign  and  the  protection  from  the  encroachments 
of  corporations  is  assured  by  the  guarantee  of  Sec.  190, 
Constitution  1890. 

But  that  doctrine  is  not  assailed  here.  This  is  a  case 
involving,  not  legislative  power,  but  legislative  will.  In 
this  direct  connection,  it  must  again  be  observed  that  by  the 
Act  now  under  review,  what  is  forbidden  to  corporations  is 
likewise  forbidden  to  individuals;  the  contracts  and  agree- 
ments which  are  by  paragraphs  (g)  and  (h)  condemned, 


84 

fall  under  the  ban  of  the  law  whether  entered  into  by  cor- 
porations solely  among  themselves,  or  jointly  with  individ- 
uals, or  by  several  individuals  alone. 

It  is  contended  that  all  combinations  or  contracts  with- 
out regard  to  purpose,  intent  or  effect,  by  which  the  control 
to  any  extent  of  business  or  of  the  products  and  earnings 
thereof,  is  placed  within  the  power  of  trustees  or  by  which 
other  persons  than  the  contracting  parties  or  their  proper 
officers,  agents  or  employees  are  given  the  power  to  dictate 
or  control  the  management  of  business  are  prohibited  by  the 
terms  of  the  Act.  If  this  narrow  construction  is  in  fact  the 
legislative  intent,  the  entire  law  would  be  open  to  the  just 
criticism  of  being  a  wholly  unnecessary  if  not  an  unwar- 
ranted invasion  of  the  inherent  right  of  the  citizen  to  deal 
with  his  own  as  he  pleases,  if  without  injury  to  others.  Gage 
vs.  State,  24  Ohio,  C.  C.  R.  724. 

Carried  to  its  logical  conclusion  this  argument  would 
prevent  any  two  or  more  individuals  engaged  in  business 
from  employing  the  same  agents  or  representatives,  or  from 
placing  in  the  hands  of  the  same  individual  the  right  to  con- 
trol their  separate  businesses.  So,  two  planters,  owning  ad- 
joining plantations  by  employing  the  same  manager  to  con- 
trol both  places  with  power  to  manage  the  business,  dictate 
to  the  laborers  and  dispose  of  the  products,  would  be  guilty 
of  a  criminal  conspiracy.  Two  jobbers  who  employ  the 
same  travelling  salesman  with  power  to  accept  or  reject  or- 
ders to  be  transmitted  to  one  or  the  other  of  the  stores ;  or 
two  merchants  who  employ  the  same  drayman  to  haul  and 
deliver  their  freight;  or  two  express  companies  which  em- 
ploy the  same  messenger  and  delivery  man ;  or  two  railroad 
companies  which  employ  the  same  ticket  or  freight  agent  at 
union  depots ;  or  two  insurance  companies  which  employ  the 
same  adjuster,  with  power  to  settle  losses;  or  two  lumber 
companies  which  employ  the  same  attorney  with  power  to 
adjust  disputed  claims  or  impending  litigation,  and  many 
other  cases  of  every  day  occurrence,  would  each  be  violative 
of  the  law  now  under  consideration,  and  every  participant 
therein,  would  be  subject  to  the  severe  penalties  therein  pre- 
scribed. We  cannot  adopt  or  sanction  this  restricted  view. 
The  true  interpretation  in  our  judgment,  is  that  only  such 
contracts  and  agreements  (within  the  purview  of  the  para- 
graphs now  under  review)  are  forbidden  which  on  account 


85 

of  their  natural  result  are  obnoxious  to  public  policy,  or 
which,  in  themselves,  are  by  necessary  effect  inimical  to  the 
public  welfare.  Practically  the  same  construction  has  been 
placed  upon  the  anti-trust  laws  of  other  states  which, 
though  clothed  in  different  verbiage  contain  substantially 
the  same  ideas,  and  are  designed  to  attain  the  same  end. 
Thus  the  Supreme  Court  of  Montana  in  a  very  recent  case 
in  discussing  the  constitutional  and  statutory  provisions  of 
that  state  relating  to  this  matter,  says :  The  constitution 
"deals  generally  with  the  rights  and  powers  of  corporations 
and  associations  of  persons  exercising  any  of  the  powers 
and  privileges  not  possessed  by  individuals  or  partnerships, 
and  their  duties  and  purposes.  It  is  prohibitory  and  restric- 
tive in  its  general  scope  and  purpose,  the  design  of  the  con- 
vention in  adopting  its  provisions  being  to  prevent  combin- 
ations to  restrict  or  repress  competition  in  all  industrial  pur- 
suits, and  to  protect  the  people  in  general,  and  the  employees 
of  a  certain  class,  against  both  the  legislature  and  combin- 
ations of  capital  from  unjust  impositions."  And  after  show- 
ing that  certain  consolidations,  such  as  that  of  competing 
railroads,  telegraph  and  telephone  companies  and  the  like, 
are  absolutely  prohibited  "as  having  a  necessary  tendency 
to  restrict  competition,"  the  court  proceeds  to  a  discussion 
of  the  anti-trust  statute:  "Apart  from  these  wholesome 
restrictions  and  prohibitions,  the  right  of  the  people  to  ac- 
cumulate property  and  to  hold  and  enjoy  it,  either  by  in- 
dividual effort  or  by  means  of  associations  of  natural  or 
artificial  persons,  is  not  restricted.  Section  20  prohibits  any 
combination  or  contract  which  has  a  particular  purpose,  to 
wit:  "fixing  the  price  or  regulating  the  production  of  any 
article  of  commerce,  or  of  the  product  of  the  soil,  for  con- 
sumption by  the  people."  The  terms  "combine"  and  "form  a 
trust"  were  evidently  intended  to  be  read  in  connection 
with  the  expression  "for  the  purpose,  etc.,  clearly  implying 
that  in  order  to  subject  offenders  to  the  severe  penalties 
which  the  legislature  might  impose,  there  must  be  shown  a 
specific  intent  to  do  the  prohibited  act,  or  that  the  association 
or  combination  necessarily  tends  to  accomplish  the  same  re- 
sult. That  this  is  the  meaning  is  clear  from  the  enumeration 
of  persons  who  may  not  do  the  prohibited  acts.  Corpora- 
tions, stock  companies,  natural  persons  or  partnerships  are 
all  included.  If  the  criminal  intent  is  not  a  necessary  in- 
gredient of  the  evil  denounced,  then  all  sorts  of  combin- 


86 

ations  are  to  be  deemed  prohibited,  even  ordinary  copart- 
nerships, as  coming  within  the  letter  or  the  prohibition.  For 
the  terms  ''combine"  and  "form  a  trust"  are  of  equal  dig- 
nity. If  the  former  is  to  be  regarded  as  modified  and  ex- 
plained by  the  clause  "for  the  purpose,"  etc.,  by  the  same 
rule  must  the  latter  also.  The  term  "trust"  is  assigned  the 
meaning  given  to  it  by  the  text-writers  (Cook  on  Corpora- 
tions, Sec.  503  a;  Spelling  on  Trusts,  Sec.  121),  includes 
any  form  of  combination  between  corporations,  or  corpor- 
ations and  natural  persons,  for  the  purpose  of  regulating 
production  and  repressing  competition  by  means  of  the 
power  thus  centralized."  And  after  showing  that  the  term 
was  first  used  in  a  narrower  sense  and  applied  only  to  trans- 
fer of  stock  by  several  corporations  to  trustees  with  power 
to  vote,  the  Court  continues :  "If  it  be  construed  as  equiva- 
lent to  the  term  "combination"  or  "consolidation"  the 
meaning  of  the  section  is  perfectly  clear.  If  used  in  the 
sense  of  the  definition  given  it  by  the  text-writers,  it  is  none 
the  less  clear,  though  it  involves  a  repetition  of  the  same  idea, 
since  the  definition  includes  the  idea  of  criminal  purpose, 
and  makes  it  a  necessary  ingredient  of  the  offense  de- 
nounced. The  section  of  the  statute  quoted  involves  the 
same  idea  and  demands  the  same  construction,  though  it  is 
more  specific  in  its  provisions,  and  extends  to  and  includes 
combinations  in  restraint  of  competition  in  transportation. 
It  denounces  every  form  of  combination  or  contract  which 
has  for  its  purpose,  directly  or  indirectly,  the  restraint  of 
production  or  trade  in  any  way  or  manner,  or  the  control  of 
the  price  of  any  article  of  consumption  by  the  people.  It 
was  not  the  purpose  of  the  convention,  or  the  legislature,  to 
limit  either  the  term  used  in  the  Constitution,  or  in  the 
Statute,  by  any  narrow  definition,  but  to  leave  it  to  the 
courts  to  look  beneath  the  surface,  and,  from  the  methods 
employed  in  the  conduct  of  the  business,  to  determine 
whether  the  association  or  combination  in  question,  no  mat- 
ter what  its  particular  form  should  chance  to  be,  or  what 
might  be  its  constituent  elements,  is  taking  advantage  of 
the  public  in  an  unlawful  way.  Harding  vs.  Am.  Glucose 
Co.,  182  Ills.  551.  In  each  case,  therefore,  under  these  pro- 
visions, the  nature  of  the  arrangement  or  combination  is  a 
question  of  fact  to  be  determined  by  the  Court  from  the  evi- 
dence before  it,  or  from  the  vice  which  inheres  in  the  contract 
itself."  McGinnis  vs.  Boston  &  M.  Consol  Copper  &  Sil- 


87 

ver  Min.  Co.,  75  P.  94;  Ceballos  vs.  Munson  S.  S.  Line,  pj 
Hun.  595  and  cases  cited. 

Nor  is  the  rule  of  construction  different  when  applied 
to  the  federal  anti-trust  statute.  "It  is  now  settled  (says 
the  Circuit  Court  of  Appeals)  by  repeated  decisions  of  the 
Supreme  Court  that  the  test  of  the  validity  of  a  contract, 
combination  or  conspiracy  challenged  under  the  anti-trust 
law  is  the  direct  effect  of  such  a  contract  or  combination 
upon  competition  in  commerce  among  the  states.  If  its 
necessary  effect  is  to  stifle  competition,  or  to  directly  and 
substantially  restrict  it,  it  is  void.  But  if  it  promotes,  or 
only  incidentally  or  indirectly  restricts,  competition  in  com- 
merce among  the  states,  while  its  main  purpose  and  chief 
effect  are  to  foster  the  trade  or  enhance  the  business  of  those 
who  make  it,  it  does  not  constitute  a  restraint  of  interstate 
commerce  within  the  meaning  of  that  law  and  is  not  ob- 
noxious to  its  provisions.  This  Act  of  Congress  must  have 
a  reasonable  construction.  It  was  not  its  purpose  to  prohibit 
or  to  render  illegal  the  ordinary  contracts  or  combinations 
of  manufacturers,  merchants,  and  traders,  or  the  usual  de- 
vices to  which  they  resort  to  promote  the  success  of  their 
business,  to  enhance  their  trade,  and  to  make  their  occupa- 
tions gainful,  so  long  as  those  combinations  and  devices  do 
not  necessarily  have  a  direct  and  substantial  effect  to  re- 
strict competition  in  commerce  among  the  states."  Phillips 
vs.  lola  Portland  Cement  Co.,  125  F.  594. 

And  for  an  exhaustive  and  very  lucid  discussion  of  the 
same  subject,  in  which  the  same  result  is  reached,  see  the 
elaborate  opinion  in  Whitewell  vs.  Continental  Tobacco  Co., 
125  F.  454,  supported  by  numerous  extracts  from  opinions 
of  the  United  States  Supreme  Court. 

As  the  latest  authoritative  utterance  upon  this  subject 
we  quote  from  the  opinion  of  the  Supreme  Court  of  the 
United  States  in  Northern  Securities  Company  vs.  United 
States,  793  U.  S.  43  L.  Ed.  698,  where  among  other  propo- 
sitions which  it  is  announced  are  plainly  deducible  from 
previous  decisions  of  that  Court,  which  are  reviewed,  are  the 
following,  which  embrace  the  case  at  bar : 

"That  the  natural  effect  of  competition  is  to  increase 
commerce  and  an  agreement  whose  direct  effect  is  to  pre- 


vent  this  play  of  competition  restrains  instead  of  promoting 
trade  and  commerce ; 

"That  to  vitiate  a  combination  such  as  the  act  of  con- 
gress condemns,  it  need  not  be  shown  that  the  combination, 
in  fact,  results  or  will  result,  in  a  total  suppression  of  trade 
or  in  a  complete  monopoly,  but  it  is  only  essential  to  show 
that,  by  its  necessary  operation,  it  tends  to  restrain  inter- 
state or  international  trade  or  commerce  or  tends  to  create 
a  monopoly  in  such  trade  or  commerce  and  to  deprive  the 
public  of  the  advantages  that  flow  from  free  competition." 

Justice  Brewer  in  his  concurring  opinion  in  that  case, 
also  speaking  of  the  federal  anti-trust  statute  says:  "That 
act  as  appears  from  its  title  was  leveled  at  only  unlawful 
restraints  and  monopolies."  Congress  did  not  intend  to 
reach  and  destroy  those  minor  contracts  in  partial  restraint 
of  trade  which  the  long  course  of  decisions  at  common  law 
had  affirmed  were  reasonable  and  ought  to  be  upheld.  The 
purpose  rather  was  to  place  a  statutory  prohibition,  with 
prescribed  penalties  and  remedies,  upon  those  contracts 
which  were  in  direct  restraint  of  trade,  unreasonable  and 
against  public  policy.  Whenever  a  departure  from  common 
law  rules  and  definitions  is  claimed,  the  purpose  to  make  the 
departure  should  be  clearly  shown.  Such  a  purpose  does 
not  appear,  and  such  a  departure  was  not  intended. 

Further,  the  general  language  of  the  act  is  also  limited 
by  the  power  which  each  individual  has  to  manage  his  own 
property  and  determine  the  place  and  manner  of  its  invest- 
ment. Freedom  of  action  in  these  respects  is  among  the  in- 
alienable rights  of  every  citizen." 

By  parity  of  reasoning  we  think  these  observations 
strikingly  applicable  to  our  own  statute.  The  object  of  the 
federal  anti-trust  statute  is  to  preserve  to  the  people  of  the 
entire  nation  the  benefits  arising  from  competition  in  busi- 
ness by  preventing  monopolies  and  contracts  in  restraint  of 
trade  in  regard  to  commerce  among  the  states ;  the  object 
of  the  state  legislation  is  to  preserve  to  the  people  of  the 
state  the  identical  benefits  by  preventing  monopolies  and 
contracts  in  restraint  of  trade  in  regard  to  domestic  com- 
merce. To  vitiate  a  combination  such  as  the  statute  con- 


89 

demns,  it  is  essential  to  show  that  by  its  necessary  operation 
it  tends  to  restrain  trade  or  commerce,  or  tends  to  create  a 
monopoly  in  such  trade  or  commerce,  and  to  deprive  the 
public  of  the  advantages  that  flow  from  free  competition. 
The  trade  or  commerce  so  affected  being  domestic  or  inter- 
state or  foreign,  according  to  whether  the  state  or  federal 
statute  is  invoked.  But  to  vitiate  the  combination  the  effect 
must  be  detrimental  to  the  interests  of  the  public  under 
either  statute.  An  approved  statement  of  the  rule  is  this: 
"Combination  for  business  purposes  is  legal.  Combinations 
are  beneficial  as  well  as  injurious,  according  to  the  motives 
or  aims,  with  which  they  are  formed.  It  is  therefore  impos- 
sible to  prohibit  all  combinations.  The  prohibition  must  rest 
upon  the  objectionable  character  of  the  objects  of  the  com- 
binations." Tiedeman  Limitations  Police  Power,  Sec.  244. 

We  adopt  this  announcement  as  accurate  with  the  ad- 
ditional proviso,  that  if  the  effect  of  the  combination  be 
evil,  it  will  be  condemned  no  matter  how  praiseworthy  its 
object  may  have  been. 

We  cannot  convict  the  legislature  of  having  intended 
to  prohibit  the  very  many  and  constantly  increasing  num- 
ber of  perfectly  legitimate  contracts  or  combinations  to 
which  the  growth  of  business,  or  the  exigencies  of  com- 
merce give  rise,  and  which  are  constantly  multiplied  by  new 
avenues  continually  being  opened  by  the  thrift,  progress  and 
invention  of  this  era  of  complex  business  enterprises.  Keep- 
ing in  mind  the  clear  statement  before  quoted  from  Insur- 
ance Co.  vs.  State  supra,  that  only  such  combinations  are 
forbidden  as  may  have  the  effect  of  injuring  the  public  or 
some  part  thereof,  or  some  corporation  or  private  individ- 
ual, the  meaning  of  the  statute  and  of  the  paragraphs  par- 
ticularly in  question  becomes  perfectly  plain  and  the  plan 
inaugurated  by  the  legislature  stands  out  in  bold  relief  in 
all  its  details. 

With  this  interpretation  of  the  statute  we  pass  to  the 
consideration  of  the  question  whether  or  not  the  Louisiana 
Car  Service  Association,  as  disclosed  by  this  record,  comes 
within  the  condemnation  of  any  of  the  provisions  of  the 
anti-trust  law  as  the  same  now  exists  in  our  state.  It  is  not 
contended  that  a  car  service  association  does  anything  to 
diminish  the  benefits  arising  from  competition  in  business 


90 

which  are  sought  to  be  secured  to  the  public ;  it  is  manifest 
that  not  only  is  a  car  service  association  not  any  restraint  to 
trade,  but  on  the  contrary  by  insuring  or  endeavoring  to  in- 
sure the  prompt  handling  of  freight  after  it  has  reached  its 
destination,  by  increasing  the  facilities  for  transportation, 
by  requiring  the  speedy  unloading  of  cars  so  that  the  same 
may  be  again  placed  in  use,  it  tends  to  increase  competition 
in  business  and  facilitates  the  transportation  of  every  com- 
modity handled  through  the  agency  of  railroads.  The 
record  discloses  that  as  a  public  agency,  car  service  associa- 
tions are  a  power  for  good  in  the  line  indicated  and  in  no 
manner  hinder  competition  in  the  importation  or  the  trans- 
portation of  any  commodity.  It  is  urged  that  a  car  service 
association,  with  the  powers  vested  in  it  as  shown  by  this 
record,  falls  within  the  scope  and  meaning  of  paragraphs 
(g)  and  (h)  of  Chapter  88,  Acts  1900,  in  that  it  places  the 
control  to  some  extent,  of  the  business  of  the  various  rail- 
roads forming  the  association  in  the  power  of  trustees  and 
permits  other  persons  than  their  proper  officials,  agents  and 
employees  to  dictate  or  control  the  management  of  their 
business,  and  hence  is  such  a  combination  as  is  forbidden 
bv  the  statute  referred  to.  In  this  connection  it  should  again 
be  observed  that  paragraphs  (g)  and  (h)  were  first  adopted 
in  identical  form  in  Sec.  4437,  Code  1892.  At  the  date  of 
their  enactment  car  service  associations  were  already  in 
operation  in  many  sections  including  our  own  state.  Since 
then  their  usefulness  and  the  beneficial  results  which  have 
followed  from  their  operations  have  so  demonstrated  the  ad- 
vantage which  they  afford  to  both  railroads  and  the  public 
that  at  this  time — so  this  record  discloses — the  railroads  of 
the  entire  nation  with  rare  exceptions,  are  grouped  into  one 
or  another  of  the  many  car  service  associations  which  now 
exist,  so  that  in  no  part  of  the  territory  of  these  United 
States  where  car  service  associations,  operating  under  rea- 
sonable rules  and  regulations,  which  are  fairly,  equitably, 
yet  rigidly  enforced,  is  it  possible  for  the  carrier  to  discrim- 
inate against  the  receiver  of  freight,  or  for  the  consignee  of 
freight  to  take  an  undue  advantage  of  the  carrier  or  of  any 
competitor  in  business  similarly  situated.  As  originally  de- 
vised the  demurrage  charges  which  every  car  service  asso- 
ciation undertook  to  assess  for  undue  detention  of  cars 
caused  by  dilatoriness  in  unloading  the  same  by  the  con- 
signee, the  amount  of  per  diem  demurrage  which  could  be 


levied,  was  solely  within  the  discretion  of  the  car  service 
association.  With  this  knowledge,  and  in  order  to  prevent 
possible  hardship  by  imposition  of  oppressive  rates  for  de- 
murrage, the  legislature  of  our  state  by  Chapter  82,  Acts 
1898,  wisely  placed  the  car  service  associations  under  the 
supervision  of  the  State  Railroad  Commission.  Recogniz- 
ing the  advantages  which  were  incident  to  the  operation  of 
car  service  associations  the  legislature  by  this  thoughtful 
and  timely  action  secured  these  advantages  to  the  public, 
and  at  the  same  time  shielded  and  protected  the  people  from 
any  possible  hardship  which  might  be  caused  by  the  imposi- 
tion of  exorbitant  rates  for  delay  in  unloading.  Acting 
under  the  power  thus  vested  in  it,  the  Railroad  Commission, 
adopted  and  promulgated  certain  rules  in  reference  to  de- 
murrage charges,  regulating  the  amount  which  could  be  im- 
posed and  setting  out  in  detail  the  circumstances  under 
which  they  might  rightfully  be  levied,  and  then  clothed  the 
associations  with  authority  to  collect  in  all  proper  cases. 
And  the  implied  warrant  for  their  continued  existence  and 
operation  evidenced  by  this  action  of  the  Railroad  Commis- 
sion in  thus  assuming  control  of  them,  and  formulating  rules 
and  regulations  for  their  government,  is  suggestive  that  the 
Commission  deemed  neither  their  form,  purpose  or  opera- 
tion pernicious  in  effect,  or  in  anywise  detrimental  to  the 
public  interests.  It  should  be  observed  that  these  rules  affix- 
ing penalties  for  undue  detention  of  cars  were  not  devised 
for  the  benefit  of  railroad  companies  alone,  but  were  framed 
by  the  State  Railroad  Commission,  a  tribunal  charged  by 
law  with  the  duty  of  supervising  all  common  carriers  for  the 
benefit  of  the  public  at  large. 

Nor  is  the  force  of  the  inference  logically  drawn  from 
this  action  of  the  Railroad  Commission  weakened  by  the 
suggestion  that  the  Commission  has  never  undertaken  to 
supervise  car  service  associations,  but  has  studiously  re- 
frained from  assuming  the  authority  vested  in  it  by  the  leg- 
islature, and  has  restricted  the  operation  of  its  rules  in  ref- 
erence to  demurrage  and  car  service  charges  to  the  railroads 
solely.  This  contention  will  not  bear  the  test  of  investiga- 
tion. That  the  Railroad  Commission  has  assumed  and  is 
now  exercising  supervision  of  car  service  associations  is 
made  evident  by  an  inspection  of  the  rules  adopted  and  for- 
mally announced  by  the  Commission  and  accepted  and  estab- 


92 

lished  by  the  Louisiana  Car  Service  Association  for  its 
guidance  in  the  transacting  of  its  operation.  It  is  true  that 
these  rules  require  the  railroad  company  handling  the  freight 
to  give  notice  of  the  arrival  of  the  car,  but  this  is  a  mere 
announcement  by  the  law  as  it  exists  irrespective  of  the 
rule.  This  is  a  duty  imposed  upon  the  carrier  by  the 
law,  and  its  prompt  performance  is,  by  the  rule,  made  a  con- 
dition precedent  to  the  collection  of  any  demurrage  charges. 

Car  Service  Associations  have  nothing  to  do  with  the 
handling  of  freight  or  the  notifying  of  consignees  of  its 
arrival.  Their  services  are  only  called  into  requisition  after 
"legal  notice"  as  defined  by  the  rules,  has  been  duly  given 
the  consignee.  It  is  also  true,  that  the  rules  speak  of  the  de- 
murrage charges  being  collected  by  the  railroads,  but  this  is 
again  in  accordance  with  the  established  usage  of  such  as- 
sociations. Car  Service  Associations  are  simply  agencies 
employed  by  railroad  companies  to  insure  prompt,  accurate 
and  impartial  assessing  of  demurrage,  but  in  each  instance 
it  is  assessed  in  favor  of  the  railroad  entitled  to  it,  and  it  is 
collected  by  that  railroad,  sometimes  by-  the  Car  Service 
Association  of  which  it  is  a  member,  sometimes  by  some 
other  of  its  various  employees,  according  to  the  custom  of 
the  railroad  in  reference  to  its  collections.  But  by  Rule  1 1 
the  Railroad  Commission  prohibits  any  charges  for  demur- 
rage or  storage  being  made  except  as  permitted  by  its  said 
rules:  Rule  12  limits  the  operations  of  the  rule  permitting 
demurrage  charges  to  "places  where  car  service  rules  are  in 
operation,"  thus  tacitly  acquiescing  in  and  endorsing  the  en- 
forcement of  car  service  rules.  While  Rule  13  in  express 
terms  recognizes  the  existence  of  car  service  associations  by 
providing  that  demurrage  shall  be  collected  for  the  detention 
of  "private  cars,"  when  the  same  are  detained,  presumably, 
even  by  the  owners  of  the  cars,  "on  the  tracks  belonging  to 
or  operated  by  members  of  this  Association/' 

It  is  a  fact  fraught  with  significance  that  these  rules 
were  not  adopted  by  the  Railroad  Commission  until  by  leg- 
islative enactment  power  to  supervise  car  service  associa- 
tions had  been  vested  in  it. 

Finally,  a  reference  to  the  records  of  the  Commission 
definitely  settles  its  intent  beyond  the  peradventure  of  a 
doubt,  for  the  resolution  adopting  the  very  rules  now  under 


93 

consideration  in  express  terms  declares  that  the  rules  are 
"adopted  for  the  Car  Service  Associations  doing  business 
in  this  State."  And  by  resolutions  subsequently  adopted, 
Car  Service  Associations  were  warned  that  "under  authority 
conferred  upon  the  Railroad  Commission  by  Chapter  82, 
Laws  1898,"  they  were  expected  to  make  reports  as  the 
Commission  might  direct.  Record  Book  3,  p.  149-164. 

It  is  manifest,  therefore,  that  not  only  did  the  legisla- 
ture intend  to  place  car  service  associations  under  the  super- 
vision of  the  Railroad  Commission,  but  that  control  was 
in  fact  assumed  and  exercised  by  the  Commission. 

We  are  forced,  by  these  considerations,  to  the  conclu- 
sion that  this  position  of  appellee  is  untenable. 

The  argument  is  strongly  pressed  that  the  Louisiana 
Car  Service  Association  by  the  manner  in  which  it  enforced 
its  rules  and  regulations,  in  the  instant  case,  acted  in  such 
an  unlawful  or  oppressive  way  as  to  put  itself  beyond  the 
pale  of  the  law,  and  deprived  it  of  the  rights  and  privileges 
granted  by  the  rules  and  regulations  of  the  Mississippi  Rail- 
road Commission. 

In  addition  to  the  rules  regulating  the  collections  of  de- 
murrage charges  and  stating  the  amount  and  circumstances 
under  which  the  same  might  be  collected,  the  Railroad  Com- 
mission further  provided : 

"Rule  9.  No  discrimination  in  charges  allowed  be- 
tween persons  or  places. 

"Railroads  shall  not  discriminate  between  persons  or 
places  in  storage  or  demurrage  charges.  If  a  railroad  com- 
pany collects  storage  or  demurrage  of  one  person,  under 
the  demurrage  rules,  it  must  collect  of  all  who  are  liable. 
No  rebate,  drawback  or  other  similar  devise  will  be  allowed. 

"If  demurrage  is  collected  by  the  railroad  company  at 
one  point  on  its  line,  it  must  collect  at  all  places  on  its  line 
of  those  liable  under  the  rules  of  this  commission.  Provided, 
that  the  commission  shall  hear  and  grant  applications  to  sus- 
pend the  operation  of  this  rule  whenever  justice  shall  de- 
mand this  course." 


94 

Without  disobeying  the  express  mandate  of  this  rule 
and  thereby  subjecting  itself  to  the  penalties  prescribed  by 
Chapter  82,  Acts  1898,  the  Louisiana  Car  Service  Associa- 
tion was  without  authority  to  refuse  or  neglect  to  collect  de- 
murrage from  one  merchant  when,  under  similar  circum- 
stances and  conditions  it  demanded  and  received  such 
charges  from  other  merchants.  This  is  forbidden,  and  most 
rightfully  so,  by  the  mandate  of  the  Railroad  Commission 
which  gives  to  the  operations  of  the  Car  Service  Association 
the  sanction  of  its  approval.  Such  favoritism  would  work 
discrimination  of  the  grossest  kind,  by  giving  to  one  mer- 
chant an  unconscionable  advantage  over  all  competitors  en- 
gaged in  the  same  business.  If  a  railroad,  or,  a  car  service 
association,  had  the  authority,  at  its  mere  whim  and  pleas- 
ure, to  permit  one  merchant,  owning  a  warehouse  on  a  side 
track,  to  receive  freight  and  keep  it  stored  in  its  cars  without 
demanding  demurrage  for  their  detention,  while  at  the  same 
time  the  collection  of  such  charges  was  demanded  and  en- 
forced of  another  merchant,  in  the  same  line  of  business  and 
owning  a  warehouse  similarly  located,  it  would  place  it  in 
the  power  of  the  carrier,  by  such  arbitrary  action,  to  build 
up  the  one  business  and  place  a  heavy  burden  upon  the 
other.  This  rule  was  devised  to  prevent  the  possibility  of 
such  combination  between  carrier  and  merchant ;  an  arrange- 
ment which  would  in  truth  be  a  "combine"  with  the  inevit- 
able and  pernicious  effect  of  decreasing  the  benefits  arising 
from  competition  in  business,  because  by  building  up  one 
business  and  breaking  down  competition  it  would  tend  to 
create  a  monopoly  for  the  benefit  of  the  unjustly  favored 
few.  Warehousemen's  Asso.  vs.  Railroad,  7  Inter.  St.  Com. 
Com.  Rep.  556.  An  inspection  of  the  rules  of  the  Railroad 
Commission  show  that  the  right  at  any  time  to  suspend  the 
operation  of  this  rule  whenever  justice  shall  demand  this 
course,  is  expressly  reserved.  The  object  of  this  wise  and 
thoughtful  provision,  being  of  course,  that  whenever  by  rea- 
son of  untoward  or  unforseen  circumstances,  the  imposition 
of  demurrage  charges  would  work  a  hardship  or  injury  to 
any  particular  place  or  community,  the  rule  could  be  sus- 
pended, so  that  what  was  designed  as  a  benefit  to  the  public 
cannot  be  converted  into  a  weapon  of  oppression.  In  the 
instant  case  we  find  that  during  the  entire  period  covered 
by  this  controversy,  demurrage  was  demanded  and  collected 
of  every  other  merchant  doing  business  in  the  city  of  Vicks- 


95 

burg,  by  whom  it  was  rightfully  due.  We  find  further,  that 
Searles,  alone  of  all  men  engaged  in  similar  business,  and 
so  far  as  the  record  discloses,  of  all  merchants  in  the  city  of 
Vicksburg,  denied  the  power  and  authority  of  the  Car  Ser- 
vice Association  to  impose  and  collect  demurrage.  Under 
such  circumstances  it  was  not  only  the  right  but  it  was  the 
duty  of  the  Car  Service  Association — representing  in  this 
instance  the  Yazoo  &  Mississippi  Valley  Railroad  Company 
— to  accord  to  Searles  the  same  treatment  which  his  compet- 
itors received.  If  on  account  of  any  special  circumstances, 
of  which,  however,  the  record  gives  no  hint,  the  imposition 
of  demurrage  charges  in  the  city  of  Vicksburg,  worked  a 
special  hardship,  the  parties  aggrieved  had  an  adequate 
remedy  by  applying  to  the  Railroad  Commission  to  tempo- 
rarily suspend  the  operation  of  the  rule.  This,  appellee  did 
not  do,  contenting  himself  by  refusing  to  pay  demurrage 
and  hauling  his  freight  from  the  public  delivery  track  by 
drays.  The  fair  and  impartial  collection  of  demurrage  is 
expressly  enjoined  upon  car  service  associations  and  they 
are  forbidden  to  administer  and  enforce  their  rules  "with  an 
evil  eye  and  an  unequal  hand"  so  as  to  make  the  unjust  dis- 
crimination between  persons  or  places  in  similar  circum- 
stances. 

In  the  extremely  elaborate  opinion  of  the  trial  judge, 
it  is  said : 

"If  therefore  the  question  was :  do  the  published  rules 
of  the  Railroad  Commission,  adopted  by  the  Car  Service 
Association,  and  being,  as  Mr.  Hoskins,  the  Manager,  says, 
the  only  rules  they  have,  constitute  them  a  Trust  and  Com- 
bine under  our  statutes  probably  plaintiff  would  have  no 
standing  in  court.  But  it  appears  from  the  conduct  of  the 
parties  composing  this  association  and  the  testimony  of  their 
manager,  Mr.  Hoskins,  that  they  operate  under  two  sets  of 
rules ;  one  the  exoteric  or  published  rules  in  evidence,  known 
to  and  for  the  benefit  of  the  outside  public,  including  the 
courts,  and  the  other,  the  esoteric  or  the  arbitrary  and  dis- 
cretionary powers  of  the  Manager  himself,  known  only  to 
and  for  the  benefit  of  those  living  within  the  inner  circle,  the 
members  of  the  Association  and  its  agents.  It  is  the  acts 
of  the  Association  under  the  latter  rules  that  furnish  the 
basis  of  this  controversy,  and  which  we  are  called  upon  to 
consider." 


96 

And,  after  an  extended  discussion  the  judge  arrives  at 
the  conclusion  that  the  Louisiana  Car  Service  Association 
by  reason  of  its  operation  under  certain  unpublished  rules, 
so  called,  has  brought  itself  within  the  scope  of  our  anti- 
trust statute. 

Applying  settled  principles  of  law  to  establish  facts, 
will  this  conclusion,  in  the  light  of  this  record,  bear  scrutiny  ? 

It  is  of  course  true  that  courts  will  look  through  the 
form  to  ascertain  the  character  of  any  association  and  will 
judge  of  its  nature,  not  merely  by  its  promulgated  rules, 
but  by  its  actual  operation  as  well,  and  will  decide  the  ques- 
tion of  its  legality  or  illegality  according  to  the  true  nature 
and  probable  effect  of  the  arrangement  without  special  re- 
gard to  the  form  which  has  assumed  in  each  particular  in- 
stance. If  an  apparently  innocent  form  is  in  truth  but  a 
disguise  assumed  to  mask  a  sinister  design,  the  court,  dis- 
regarding the  outward  shape,  will  condemn  the  arrange- 
ment. This  rule  has  the  endorsement  of  the  highest  judi- 
cial authority. 

But  it  is  equally  as  true,  that  if  the  form  of  the  ar- 
rangement be  legal,  and  its  aim  and  purpose  such  as  the  law 
will  uphold,  it  will  not  be  denounced  from  the  fact  alone, 
that  the  objects  for  which  the  agreement  was  entered  into, 
are  occasionally  effectuated  by  rules  which  are  only  invoked 
as  it  becomes  necessary  to  cope  with  unforseen  contin- 
gencies as  they  arise.  If  the  contract,  understanding  or 
agreement  be  not  of  itself  inimical  to  the  public  welfare,  nor 
in  contravention  of  express  statute,  it  will  be  upheld  unless 
it  be  so  operated  as  to  become  oppressive,  by  infringing 
upon  the  rights  of  private  individuals,  or,  unless  it  works  to 
the  detriment  of  the  general  public. 

Making  an  application  of  these  general  principles  to 
the  concrete  case  here  presented,  we  find:  That  the  Louis- 
iana Car  Service  Association  is  one  of  a  class  of  combin- 
ations the  existence  of  which,  in  this  State,  is  recognized  by 
an  Act  of  the  legislature;  that  the  prime  aim  and  purpose 
of  similar  associations  has  been  by  repeated  adjudications 
of  courts  of  last  resort,  upheld  and  pronounced  beneficial  to 
public  and  carrier  alike;  that  the  rules  for  its  government 
and  for  the  transaction  of  its  general,  ordinary  and  routine 


97 

business  are  framed  by  the  Railroad  Commission,  the  tri- 
bunal invested  by  law  with  absolute  power  of  supervision; 
that  if  unexpected  cases  arise,  not  covered  by  the  general 
rules,  the  Manager  of  the  Association  copes  with  such  diffi- 
culties in  his  discretion,  until  his  action  in  the  premises  can 
be  reviewed  by  the  officials  composing  the  Executive  Board 
of  the  Ajssociation.  The  legality  and  validity  of  the  general 
rules  of  the  Association  being  vouched  for  by  the  action  of 
the  Railroad  Commission,  the  question  next  presented,  is: 
Was  the  special  order  of  August  28th,  1902,  refusing  to 
switch  cars  for  appellee,  so  unreasonable  in  its  terms  and 
such  an  oppressive  act  as  to  make  the  Association  a  combin- 
ation inimical  to  the  public  welfare,  or  was  it  the  exercise 
of  such  power  as  showed  that  the  Yazoo  and  Mississippi 
Valley  Railroad  Company  had  surrendered  the  control  "to 
any  extent"  of  its  business,  so  that  persons  other  than  its 
proper  officers,  agents  or  employees  had  the  power  to  dic- 
tate or  manage  the  same  ?  This  is  the  pivotal  question  upon 
this  branch  of  the  case.  After  the  most  careful  and  pro- 
tracted consideration,  we  have  reached  the  conclusion  that 
the  special  order  referred  to  was  not,  under  the  circum- 
stances of  this  case,  discriminative  or  oppressive.  It  was  in 
fact  but  the  reenactment  and  putting  in  force  of  a  rule  of 
similar  import  which  was  in  force  with  the  Louisiana  Car 
Service  Association  prior  to  the  promulgation  of  the  present 
rules  by  the  Mississippi  Railroad  Commission,  and  their 
adoption  by  the  Association.  The  enforcement  of  this  spe- 
cial order  was  nothing  more  nor  less  than  an  effort  to  carry 
into  effect  that  rule  of  the  Railroad  Commission  which 
requires  the  collection  of  demurrage  from  all  alike  who  are 
subject  thereto.  The  condition  of  affairs  as  it  existed  at 
that  date  amply  justified  the  Louisiana  Car  Service  Asso- 
ciation in  invoking  the  aid  of  the  rule  in  question.  That 
rule  is  as  follows : 


"Rule  X,  Sec.  2.  On  deliveries  to  private  sidings,  in 
cases  where  consignees  or  consignors  refuse  to  pay,  or  un- 
necessarily defer  settlement  of  bills  for  car  service  charges, 
the  agent  will  decline  to  switch  cars  to  the  private  sidings 
of  such  parties,  notifying  them  that  deliveries  will  only  be 
made  on  public  delivery  tracks  of  company,  and  will 
promptly  notify  the  Manager  of  the  action  taken." 


98 

In  almost  identical  terms  this  rule  was  before  this 
Court  for  consideration  in  a  case  involving  the  right  to  col- 
lect demurrage,  the  reasonableness  of  the  rules,  and  the 
power  to  detain  freight  to  enforce  payment  of  demurrage 
and  car  service  charges.  At  that  time,  after  thorough  in- 
vestigation, upon  full  presentation  of  the  question,  this 
Court  announced  as  its  conclusion,  that  car  service  associa- 
tions were  legal,  their  charges  just  and  en  forcible,  their 
rules,  valid  and  reasonable.  Railroad  Company  vs.  George, 
82  Miss.  710,  and  see  Rule  3d. 

We  see  no  reason  to  withdraw  from  the  position  as- 
sumed in  that  case  which  has  been  strengthened  and  fortified 
by  several  strong  and  well  reasoned  decisions  in  other  juris- 
dictions. 

Railroad  Co.  vs.  Dorsey  Fuel  Co.,  112  Ills.  Spp.  382. 
Railroad  Co.  vs.  Midvale  Steele  Co.,  201  Pa.  St.  624. 
Schumacher  vs.  Railroad  Co.,  207  Ills.  199. 
Millers'  St.  Asso.  vs.  P.  &  R.  Ry.,  8  Inter-St.  Com. 
Rep.  530. 

Did  appellee  by  his  conduct  bring  himself  within  the 
operation  of  this  rule  ?  For  reasons  which  are  apparent  and 
the  justice  of  which  is  readily  demonstrable,  the  rule  under 
consideration  says  to  the  favored  consignee  having  a  ware- 
house on  a  private  siding,  "If  you  will  pay  demurrage  and 
car  service,  you  can  enjoy  the  advantage  of  having  your  car 
load  freight  delivered  at  your  warehouse,  but  if  you  refuse 
to  pay  or  unnecessarily  defer  paying  for  such  service,  you 
must  get  your  freight  at  the  public  delivery  track  as  do  less 
favored  consignees." 

Appellee  refused  to  recognize  the  car  service  association, 
refused  to  comply  with  its  rules,  refused  to  pay  demurrage 
charges  without  knowledge  and  without  inquiry  as  to  their 
justness  or  correctness,  and  without  reference  to  what  rep- 
resentative of  the  appellant  sought  to.  collect  them.  Planting 
himself  squarely  on  the  ground  that  he  would  not  allow  the 
car  service  association  to  in  any  manner  concern  itself  with 
the  handling  of  his  freight.  It  is  suggested  in  argument 
that  the  reason  of  these  repeated  refusals  was  because  ap- 
pellee had  an  unadjusted  claim  for  damages  to  a  car  of 


99 

corn,  but  the  record  shows  that  the  dispute  about  the  corn 
arose  long  subsequent  to  the  issuance  of  the  order  refusing 
to  switch  cars  for  appellee.  But  even  if  true,  this  would  be 
no  valid  excuse  justifying  appellee  in  refusing  to  pay  de- 
murrage when  the  same  was  justly  due.  Demurrage  is  se- 
cured by  a  lien  on  the  freight  in  the  specific  car  for  the  de- 
tention of  which  the  charge  has  been  incurred,  and  this  lien 
must  be  discharged  before  the  consignee  has  any  right  to 
demand  the  possession  of  the  freight.  It  is  manifest  and 
practically  undenied  in  the  record  that  appellee  denied  the 
legality  of  demurrage  charges  as  assessed  by  the  car  service 
association,  and  announced  his  intention  of  ignoring  its  ac- 
tion. In  the  face  of  this  expressed  determination  by  ap- 
pellee, the  Louisiana  Car  Service  Association  and  the  Yazoo 
and  Mississippi  Valley  Railroad  Company  were  forced  to 
choose  one  of  two  courses ;  either  continue  to  switch  and 
place  cars  for  appellee  without  collecting  demurrage  and 
thus  allow  him  an  unconscionable  advantage  over  his  com- 
petitors, and,  also,  subject  themselves  to  the  penalties  pro- 
vided for  disobedience  to  the  mandates  of  the  Railroad  Com- 
mission, or  invoke  the  rule  which  permitted  them  to  refuse 
to  further  switch  cars  for  an  uncompromisingly  recalcitrant 
consignee. 

Confronted  by  this  condition,  brought  about  by  the  per- 
sistent refusal  of  appellee,  appellant  and  the  Car  Service 
Association  chose  the  latter  horn  of  the  dilemma,  and  in  so 
doing,  in  our  opinion,  they  were  clearly  in  the  right.  The 
facts  do  not  bear  out  the  suggestion  that  this  order  was  sim- 
ply a  retaliatory  measure  on  the  part  of  the  appellant  to 
punish  appellee  for  his  contumacy.  Before  the  order  was 
issued,  repeated  overtures  were  made  to  appellee  looking 
to  a  settlement  of  the  pending  diffeiences,  propositions  of 
arbitration  and  an  offer  of  submission  to  the  sole  decision  of 
a  gentleman  of  highest  probity,  pre-eminent  ability,  a  pro- 
found jurist  and  closely  allied  to  the  appellees,  were  all  re- 
jected. From  start  to  finish  of  this  controversy  the  issue 
was  forced  by  appellee. 

The  further  switching  and  placing  of  cars  at  appellee's 
warehouse,  would  have  been  a  delivery  of  each  particular 
car,  and  to  have  thus  continued  to  deliver  car  loads  of 
freight  to  a  consignee  who  declared  his  intention  of  per- 
sisting in  his  refusal  to  recognize  the  validity  of  demurrage 


100 


charges,  would  have  entailed  upon  the  appellant  endless  liti- 
gation, inasmuch  as  suit  must  have  necessarily  been  brought 
for  the  demurrage  accruing  on  each  shipment,  thus  breeding 
a  multiplicity  of  suits  and  conserving  no  good  end.  A  just 
observance  of  the  rights  of  the  shipper  and  of  the  consignee 
is  mandatory  on  every  common  carrier ;  they  are  responsible 
for  actual  damages  caused  by  unwarranted  and  avoidable 
delay  in  the  transportation  of  freight,  and  are  accountable 
for  every  dereliction  of  duty.  The  rights  of  the  shipper  and 
consignee  being  amply  protected,  the  carrier  is  entitled  to 
equal  fair  dealing  at  the  hands  of  the  consignee.  If  the  plac- 
ing of  cars  after  arrival  at  destination  is  unduly  delayed, 
without  lawful  excuse,  the  consignee  who  may  be  entitled 
to  have  his  cars  switched  and  placed,  can  recover,  not  only 
demurrage  but  such  actual  damages  as  may  be  caused  by  the 
negligent  delay  of  the  carrier ;  with  equal  justice,  the  carrier 
has  the  right  to  demand  and  collect  of  the  consignee  demur- 
rage for  his  unreasonable  dilatoriness  in  unloading  the  cars 
after  they  have  been  so  placed.  There  is  a  reciprocity  of 
indemnity  under  the  rules  governing  demurrage  promul- 
gated by  the  Mississippi  Railroad  Commission.  We  have 
narrated  somewhat  at  length  the  facts  and  circumstances  at- 
tendant upon  the  issuance  of  the  order  of  August  28th,  so 
that  the  relative  attitudes  upon  the  parties  might  be  appar- 
ent, for  the  reason  that  this  will  become  of  vital  importance 
when  we  come  to  the  consideration  of  another  branch  of  the 
case.  The  reasonableness  of  the  order,  so  far  as  its  general 
tenor  and  effect  are  concerned,  being  established,  the  ques- 
tion whether  it  was  rightfully  invoked  in  the  instant  case 
does  not  affect  the  question  of  whether  a  car  service  asso- 
ciation is  or  is  not  a  trust  or  combine.  So  far  as  that  ques- 
tion is  concerned  it  may  be  conceded  that  the  enforcement 
of  the  order  against  appellee  was  unwarranted,  but  this 
while  rendering  appellant  liable  to  damages,  would  not  alter 
the  character  of  the  association,  or  in  any  manner  assist  us 
in  determining  its.  real  nature.  That  every  railroad  com- 
pany is  entitled  to  charge  and  receive  extra  compensation 
for  extra  services  rendered  after  the  arrival  of  freight  at  its 
destination,  such  as  reconsignment  charges,  car  service,  or 
switching  charges,  demurrage  and  the  like,  and  that  acting 
alone  each  railroad  would  have  the  right  to  collect  such 
charges  for  itself  in  every  proper  case,  is  now  finally  settled 
beyond  dispute. 


101 

State  ex  rel  vs.  Atchison,  etc.  Ry.  Co.,  176  Mo.  687. 
Baldwin  American  Railway  Law,  p.  557 
Elliott  on  Railroads,  Sec,  1567. 
Schumacher  vs.  Railroad,  supra. 

It  could  therefore  only  be  for  exceptional  cause  of  op- 
pression or  wrong  doing,  that  an  agreement  among  several 
railroads,  each  of  which  is  entitled  to  enforce  such  charges, 
by  which  a  plan  is  devised  for  the  accurate  assessing  and 
convenient  and  inexpensive  collection  of  such  charges  for 
each  of  the  contracting  companies,  should  be  pronounced 
unlawful  by  the  courts.  An  agreement  lawful  in  its  char- 
acter and  lawful  in  its  purpose,  is  not  rendered  unlawful 
even  if  some  of  its  members  should  attempt  to  put  it  to  an 
unlawful  use. 

Eddy  on  Combinations,  369. 

Commonwealth  vs.  Brown,  23  Pa.  Sup.  Ct.  470. 

In  Commonwealth  vs.  Carlisle,  Brightley's  Rep.  36,  the 
rule  is  thus  stated : 

"When  the  act  is  lawful  for  the  individual,  it  can  be 
the  subject  of  a  conspiracy  when  done  in  concert,  only  when 
there  is  a  direct  intention  that  injury  shall  result  from  it, 
or  when  the  object  is  to  benefit  the  conspirators  to  the  pre- 
judice of  the  public  or  the  oppression  of  individuals,  and 
where  such  prejudice  or  oppression  is  the  natural  and  nec- 
essary consequence." 

In  our  judgment  the  trial  Judge  erred  in  holding  that 
the  order  of  August  28th,  issued  under  the  circumstances 
set  forth  in  this  record,  and  not  of  itself  unreasonable  in  its 
express  terms,  being  simply  the  exercise  of  a  power  pre- 
viously sanctioned  by  this  court,  was  an  "esoteric  rule"  of 
such  baneful  nature  that  it  transformed  an  association,  law- 
ful in  its  purpose  and  beneficial  in  its  results,  to  a  criminal 
conspiracy  "inimical  to  the  public  welfare." 

We  have  found  no  authority  sustaining  such  a  propo- 
sition. Eddy  on  Combinations,  p.  1328. 

We  are  next  urged  to  declare  the  Louisiana  Car  Ser- 
vice Association  a  trust  and  combine,  because  it  is  con- 


102 


tended,  the  testimony  in  this  case  shows  that  its  formation 
involved  the  delegation  by  the  corporations  constituting  its 
membership,  of  the  management  and  control  of  their  busi- 
ness to  the  persons  managing  and  operating  the  Association ; 
that  these  persons  not  being  the  "proper  officers,  agents  or 
employees"  of  the  railroad  companies,  therefore  the  ar- 
rangement falls  beneath  the  ban  of  condemnation  pro- 
nounced by  the  law  which  forbids  any  person  other  than 
the  proper  officers,  agents  or  employees  of  a  corporation  to 
"control  the  management  of  its  business  to  any  extent." 
And  in  support  of  this  position  it  said:  Concede  that  car 
service  associations  as  institutions  are  legal  in  their  nature, 
that  as  a  general  rule  they  violate  no  provision  of  law 
and  as  operated  they  are  not  to  be  the  detriment  of  the 
public  interest,  and  that  they  are  entitled  to  be  upheld  so 
long  as  they  govern  themselves  solely  by  the  rules  formu- 
lated for  their  government  by  the  Railroad  Commission, 
still,  it  is  contended,  the  testimony  shows  that  this  particu- 
lar car  service  association  to  which  appellant  belongs  is  a 
combination  in  violation  of  law,  because  it  is  not,  nor  are 
its  operatives,  the  proper  officers,  agents  or  employees  of 
appellant,  and  Vet  the  association  is  vested  with  power  to 
control  the  management  of  the  business  of  its  members  to 
some  extent.  And  the  special  order  of  August  28th  is  re- 
ferred to  in  support  of  this  argument.  But  the  premises  in 
no  wise  warrant  the  conclusion.  The  argument  assumes 
that  the  Louisiana  Car  Service  Association  and  its  opera- 
tives are  not  the  agents  of  the  appellant  and  then  assumes 
that  the  order  referred  to  was  issued  in  the  exercise  of  an 
arbitrary  discretion  of  the  part  of  the  Manager  of  the  Asso- 
ciation, and  having  thus  assumed  as  true  all  that  it  was  nec- 
essary to  prove  proceeds  to  draw  the  conclusion  indicated. 
This  is  "vaulting  the  chasm,"  both  in  logic  and  in  law.  Let 
us  see  if  the  proof  warrants  either  assumption. 

In  another  connection  we  have  already  referred  to 
Chapter  82,  Acts  1898,  whereby  the  legislature  made  all  car 
service  associations  doing  business  in  this  state,  subject  to 
the  control  and  supervision  of  the  Railroad  Commission.  In 
view  of  this  action  on  the  part  of  the  law-making  power  of 
the  state,  having  authority  to  authorize  or  forbid  the  oper- 
ation of  such  associations,  the  contention  that  a  car  service 
association  is  of  itself  a  "combine"  forbidden  by  the  law,  is 


103 

• 

untenable.  It  is  not  conceivable  that  the  legislature  would 
thus  recognize  and  give,  at  least,  an  implied  approval  to  the 
existence  of  an  association,  if  the  same,  at  that  very  time, 
stood  condemned  by  the  law.  It  cannot  seriously  be  con- 
tended that  the  legislature  acted  in  ignorance  of  the  end 
which  was  sought  to  be  furthered  by  the  formation  of  such 
associations,  or  the  functions  which  were  exercised  by  them, 
for  the  Act  itself  states  that  they  are  "associations  govern- 
ing or  controlling  cars  or  rolling  stock  of  railroad."  Yet  it 
would  be  necessary  for  us  to  impute  this  inexcusable  ignor- 
ance to  the  legislature  if  we  were  to  accept  as  sound  the 
contention  that  it  was  thus  dealing  with  an  association  which 
was  under  Sec.  4437,  Code  1892,  at  that  very  moment,  oper- 
ating in  open  and  palpable  violation  of  law.  It  cannot  be 
conceived  that  the  legislature  would  solemnly  submit  to  the 
supervision  and  control  of  the  Railroad  Commission,  an  as- 
sociation which  could  only  exist,  if  appellee's  argument  be 
sound,  in  defiance  of  express  statute.  The  very  fact  that  the 
legislature  thus  gave,  at  least,  implied  sanction  to  associa- 
tions which  are  distinctly  recognized  as  possessing  and  exer- 
cising the  power  of  "governing  or  controlling  cars  or  roll- 
ing stock  of  railroads"  (which  is  practically  the  extent  of 
the  authority  of  car  service  associations,  as  it  is  their  prime 
object)  is  strongly  persuasive  that  such  was  not  the  control 
or  management  of  business  "to  any  extent"  dealt  with  and 
condemned  by  paragraphs  (g)  and  (h)  of  our  anti-trust 
laws.  The  legislature  permitted  them  to  exist  as  associa- 
tions "governing  or  controlling  cars  or  rolling  stock  of  rail- 
roads," and  this  record  shows  neither  the  existence  nor  the 
exercise  of  any  other  authority  of  control  by  the  Louisiana 
Car  Service  Association.  Car  service  associations,  like  other 
representatives  of  corporations,  have  no  authority,  save  such 
as  is  specially  entrusted  to  them,  and  have  no  power  of  con- 
trol beyond  the  plain  and  well  defined  boundary  lines  of 
their  duty ;  and  have  nought  to  do  with  the  earnings  of  the 
railroads  composing  their  membership;  have  no  connection 
with  any  traffic  arrangements;  are  without  power  to  insti- 
tute suits  or  proceedings  of  any  kind  in  the  name  or  on  be- 
half of  any  of  their  members,  and  are  in  no  wise  connected 
with  the  internal  management  or  financial  affairs  or  corpor- 
ate policy  of  any  railroad,  having  not  even  the  power  of  fix- 
ing the  demurrage  charges  which  it  is  their  duty  to  assess. 
The  main  end  and  purpose  of  their  existence  is  to  prove  of 


104 

benefit  to  consignor,  carrier  and  consignee  by  expediting 
the  transportation  of  freight,  facilitating  its  delivery,  and  in- 
suring prompter  and  more  satisfactory  service  by  and  for 
all  alike.  Car  service  associations  are  the  agents  and  em- 
ployees of  various  railroads  forming  such  associations;  the 
salaries  of  the  manager  and  his  subordinates  are  contributed 
to  proportionately  by  the  different  members,  while,  within 
the  scope  of  its  employment  and  duty  the  association  serves 
and  represents  all  its  members.  Car  Service  Associations 
are  simply  the  agencies  employed  by  railroad  companies  for 
the  convenient  and  accurate  assessing  of  demurrage. 

It  is  also  undeniably  true,  that,  in  the  instant  case,  the 
Manager  of  the  Louisiana  Car  Service  Association  did  not 
assume  to  have  the  authority  and  in  fact,  did  not  undertake 
to  "dictate  or  control  the  management  of  business"  of  ap- 
pellant "to  any  extent"  beyond  the  power  granted  to  all  car 
service  associations  by  the  rules  of  the  Railroad  Commis- 
sion. Before  the  order  of  August  28th,  forbidding  the 
switching  of  cars  to  appellee's  warehouse  in  the  future,  was 
issued,  the  same  was  submitted  to  the  proper  officials  of  the 
two  railroads  concerned,  and  received  the  approval  of  one, 
and  was  put  into  effect  as  to  that  road,  while  upon  the  ob- 
jection by  the  officials  of  the  other,  it  was  annulled  and  re- 
voked as  to  it.  This  potential  fact  stands  like  a  sign-board  at 
a  parting  of  the  ways  and  points  unmistakably  to  the  correct 
conclusion.  Is  it  not  proof  positive  that  the  Manager  of  the 
Car  Service  Association  outside  and  beyond  the  rules  form- 
ulated by  the  Railroad  Commission,  under  which  this  par- 
ticular association  operates,  is  subordinate  to  the  officials 
of  the  railroad  to  be  affected  by  any  special  order  which  he 
may  desire  to  issue?  No  other  hypothesis  furnishes  a  rea- 
sonable explanation  of  these  facts.  If  the  Manager  was 
clothed  with  unlimited  and  unquestionable  authority,  what 
the  necessity  for  conferring  with  the  railroad  officials  prior 
to  the  issuance  of  the  order?  If  the  Louisiana  Car  Service 
Association  was  supreme,  why  should  the  order  have  been 
rescinded  upon  the  mere  objection  of  the  superintendent  of 
one  member  of  the  Association?  Whatever  discretionary 
power  may  be  vested  in  the  Manager  of  the  Louisiana  Car 
Service  Association  generally,  sure  it  is,  that  this  record  dis- 
closed no  wrongful  exercise  or  abuse  thereof.  In  the  ab- 
sence of  proof  of  injury  or  wrong  doing  courts  will  not  in- 


IDS 

dulge  in  inferences  to  effect  the  invalidation  of  contracts  or 
agreements,  legal  in  form.  But  aside  from  the  evidence,  the 
weakness  which  undermines  appellee's  position  is  an  evident 
misinterpretation  of  the  meaning  of  the  statute  when  it  for- 
bids corporations  placing  the  "control  of  the  management  of 
business  to  any  extent"  in  the  hands  of  others  than  their 
proper  officers,  agents  or  employees.  The  argument  seems 
to  proceed  upon  the  theory  that  "control  to  any  extent"  is  a 
synonomous  expression  with  "control  of  any  part  of  its 
business."  But  this  is  erroneous.  Every  employee  of  a  cor- 
poration is  vested  with  power  to  control  to  some  extent  some 
part  of  the  business  of  his  master,  but  this  does  not  come 
within  the  condemnation  of  the  law;  otherwise  it  would  be 
impossible  for  any  corporation  to  operate  at  all.  The  evil 
which  the  law  was  intended  to  prevent  was  the  surrender  by 
one  or  more  corporations  of  their  corporate  functions,  the 
delegation  of  the  powers  granted  by  their  charters,  to  other 
persons,  in  no  wise  subject  to  or  connected  with  such  cor- 
porations, so  that  the  business  of  the  several  distinct  com- 
bining corporations  would  be  managed,  controlled  and  dic- 
tated by  these  chosen  trustees.  This  scheme,  according  to 
the  most  approved  authorities,  was  the  first  form  adopted 
by  "trusts,"  and  it  was  at  this  plan,  that  the  condemnatory 
anti-trust  law  was,  in  the  first  instance,  directed.  "Control" 
of  the  business  of  a  corporation,  within  the  meaning  of  all 
anti-trust  legislation,  so  far,  as  by  our  researches  we  have 
been  able  to  discover,  means  power  to  dictate  the  corporate 
action  of  the  corporation,  not  the  mere  management  of  some 
special,  limited  department  of  its  operations.  Noyes  on  In- 
tercorporate Relations,  Sec.  294  et  seq.  United  States  vs. 
Northern  Securities  Company,  120  F.  726  and  cases  cited. 

If  this  is  not  the  correct  view  it  would  be  unlawful  for 
connecting  railroads  to  employ  the  same  yard  master,  switch- 
man, depot  master,  ticket  agent,  or  other  joint  employees  at 
Union  Depots,  for  in  the  very  nature  of  things,  each  of  such 
employees  has  "control  of  the  management  of  business"  of 
all  the  corporations  which  he  represents  in  his  particular, 
though  limited  sphere  of  action.  The  Car  Service  Associa- 
tion has  no  greater  power ;  it  too  is  confined  within  the  strict 
limits  of  the  scope  of  its  duty. 

If  then  a  railroad  by  joining  a  Car  Service  Association, 
does  not  surrender  its  corporate  autonomy,  neither  of  the 


io6 

assumptions  of  appellee  in  this  regard  can  be  sustained  by 
the  proof ;  the  Car  Service  Association  and  its  employees  are 
the  agents  and  representatives  of  the  railroad,  and  the  con- 
trol (in  the  legal  sense)  of  the  business  of  the  railroad  is 
not  "to  any  extent"  vested  in  the  Car  Service  Association. 
It  follows  from  this  view,  that  the  question  of  how  the  mem- 
bership of  the  Executive  Board  of  the  Association  is  consti- 
tuted, is  not  material. 

Again  it  is  said  that  under  the  provisions  of  Sec.  7, 
Chapter  88,  Acts  1900,  in  suits  like  the  present  one,  founded 
on  that  statute  "proof  by  any  party  plaintiff,  that  he  has 
been  compelled  to  pay  more  fo'r  any  service  rendered  by  any 
corporation  exercising  a  public  franchise  by  reason  of  the 
unlawful  act  or  agreement  of  the  defendant  trust,  its  officers, 
agents  or  attorneys,  than  he  would  have  been  compelled  to 
give  but  for  such  unlawful  act  or  agreement,  shall  be  con- 
clusive proof  of  damage"  and,  thus,  proof  of  damage  alone 
will  entitle  the  plaintiff  to  recover  the  statutory  penalty  of 
$500  for  each  instance  of  damage.  The  argument  is  pre- 
sented in  this  form :  the  plaintiff  has  been  compelled  to  "pay 
more  for  a  service  rendered,"  by  the  appellant,  which  is  a 
"corporation  exercising  a  public  franchise ;"  this  is  "conclu- 
sive evidence  of  damage,"  ergo,  the  plaintiff  is  entitled  to 
recover.  The  argument  is  adroit  but  specious.  It's  fallacy 
consists  in  this :  it  ignores  the  fact  that  to  enable  the  plaintiff 
to  recover,  by  the  terms  of  the  statute,  he  must  have  been 
compelled  to  pay  more  for  some  service  "by  reason  of  the 
unlawful  act  or  agreement,"  and  he  must  have  been  com- 
pelled to  give  more  than  he  would  have  been  but  for  such 
"unlawful  act  or  agreement."  Concede  that  appellee  was 
compelled  to  pay  more  for  the  service  of  delivering  his 
freight  than  were  his  competitors  doing  business  and  having 
warehouses  on  the  same  switch,  was  this  because  of  any  "un- 
lawful act  of  agreement"  on  the  part  of  appellant?  By  no 
means.  Appellee  himself  refused  to  comply  with  the  rules 
and  regulations  governing  the  delivery  of  cars  to  ware- 
houses. Did  appellee  have  to  pay  more  for  any  service  than 
he  would  have  been  required  to  pay  but  for  some  "unlawful 
act  or  agreement  ?"  The  answer  must  again  be  in  the  nega- 
tive. Had  there  been  no  car  service  associations,  no  agree- 
ment between  the  railroads  of  any  character,  appellee  must 
still  have  paid  demurrage,  and  this  charge  was  no  more 


107 

and  no  less,  neither  increased  or  diminished,  by  reason  of 
the  car  service  association.  If  there  were  no  car  service  as- 
sociations, railroads  would  still  be  entitled  to  demand  car 
service  and  demurrage.  This  is  settled  beyond  cavil  or  dis- 
putation ;  settled  by  custom  and  usage ;  by  rule  of  the  Rail- 
road Commission,  by  prior  decision  of  this  Court.  Elliott, 
Railroads,  Sec.  1566  and  note,  Sec.  1567;  State  ex  rel.  vs. 
Atchison,  etc.,  Ry.  Co.,  supra;  N.  O.  &  N.  E.  R.  Co.  vs. 
George,  supra. 

We  hold  that  a  car  service  association  is  not  such  a 
"combination,  contract,  understanding  or  agreement"  as  is 
condemned  by  our  anti-trust  law ;  that  it  is  not  "inimical  to 
the  public  welfare,"  does  not  "infringe  upon  the  rights  of 
the  individual  or  the  general  well-being  of  the  state,"  and 
that  it  is  not  an  abandonment  of  corporate  autonomy  or  a 
delegation  of  corporate  functions.  Elliott,  Railroads,  Sec. 
1568;  Ky.  Wagon  Co.  vs.  Ohio  Ry.  Co.,  98  Ky.  152;  Rail- 
road  vs.  Midvale  Steel  Co.,  supra.  See  as  illustrative 
State  vs.  Terminal  Asso.,  81  S.  W.  396. 

But  on  the  contrary  we  find  that  its  form  is  lawful,  its 
aim  and  purpose  legitimate,  and  its  effect  beneficial  to  the 
public,  in  that  its  operation  tends  to  stimulate  competition  in 
business  and  increase  the  benefits  arising  therefrom.  As 
the  Louisiana  Car  Service  Association  is  not  a  "trust  or 
combine"  within  the  meaning  of  Chapter  88,  Acts  1900,  so 
the  appellant  by  becoming  a  member  thereof  did  not  subject 
itself  to  the  penalties  prescribed,  and,  hence,  appellee  is  not 
entitled  to  recover  the  statutory  penalty  awarded  by  the 
statute  to  every  one  injured  or  damaged  by  the  operation  of 
a  trust. 

We  have  not  thought  it  necessary  to  burden  this  opin- 
ion with  extended  extracts  from  authorities  sustaining  our 
position.  These  have  been  gathered  from  a  vast  field  of 
legal  research  and  are  systematically,  accurately  and  dis- 
criminatingly arranged  in  the  briefs  in  this  case,  which  are 
in  themselves,  veritable  storehouses  of  learning  upon  this 
and  allied  subjects.  We  content  ourselves  with  a  reference 
to  them  and  a  bare  citation  of  a  few  leading  authorities  from 
which  we  have  deduced  the  general  propositions  herein  an- 
nounced. The  conclusions  arrived  at  upon  the  construction 
of  our  own  statutes  we  give  as  the  result  of  serious,  pro- 


io8 

longed  and  mature  consideration,  in  which  we  have  not  been 
unmindful  of  the  gravity  of  the  issues,  or  the  immensity  of 
the  interests  involved. 

Much  that  we  have  said  in  this  connection  applies  with 
equal  force  to  the  claim  of  the  appellee  for  actual  damages 
said  to  have  been  suffered  by  reason  of  his  having  to  haul 
his  freight  by  team  from  the  public  delivery  tracks  of  the 
railroad.  And  right  here  it  becomes  important  to  consider 
the  relative  attitude  of  the  parties  when  the  order  not  to 
switch  cars  for  appellee  was  first  put  in  force.  The  rule  im- 
posing demurrage  for  dilatoriness  in  unloading  cars  is  bind- 
ing upon  consignees  even  if  they  in  fact  be  in  ignorance  of 
its  existence.  In  a  very  recent  case,  the  Supreme  Court  of 
Pennsylvania  says : 

"The  further  objection  to  plaintiff's  claim  is,  that  it 
does  not  aver  expressly  or  impliedly  that  these  parties  ever 
became  parties  to  any  contract  for  payment  of  demurrage 
on  detained  cars.  But  they  were  parties  to  the  contract  of 
shipment  over  plaintiff's  railroad  and  this  is  averred;  and, 
then,  further,  it  is  averred  that  since  the  demurage  rule  was 
adopted  it  has  formed  part  of  the  contract  of  shipment.  This 
is  sufficient  averment  of  the  implied  contract.  As  a  consig- 
nee of  goods  over  plaintiff's  railroad,  it  impliedly  contracted 
to  submit  to  all  reasonable  rules  for  the  regulation  of  ship- 
ments. That  the  shipper  was  not  consulted  in  framing  the 
rules,  does  not  effect  their  validity:  Waggon  Co.  vs.  Ohio 
Railroad  Co.,  supra.  There  is  no  duty  on  a  common  carrier 
to  consult  either  its  shippers  or  consignees,  as  to  the  wisdom 
of  its  rates  of  freight  for  carrying,  or  rules  for  demurrage ; 
as  to  the  one,  it  cannot  exceed  a  lawful  rate,  as  to  the  other, 
it  cannot  exceed  a  reasonable  charge.  Within  these  bounds, 
it  is  presumed,  in  the  interests  of  its  stockholders  and  the 
public,  to  properly  conduct  its  own  business.  Railroad  vs. 
Midvale  Steel  Co.,  201  Pa.  630;  Schumacher  vs.  Railroad, 
supra. 

The  instant  case  falls  clearly  within  this  reasoning. 
The  bills  of  lading  under  which  appellant  handled  the  cars 
giving  rise  to  this  litigation,  "the  contract  of  shipment," 
contain  an  express  provision  that  all  car  load  freight  should 
be  liable  to  charge  for  "trackage  and  rental"  for  detention 
said  charge  to  commence  "after  the  expiration  of  forty-eight 


109 

hours  from  its  arrival  at  destination."  This  was  appellee's 
contract  with  appellant  and  the  law  imputes  to  him  knowl- 
edge of  its  terms,  and  he  was  legally  bound  thereby.  The 
soundness  of  this  proposition  was  recognized  by  the  trial 
Judge.  We  quote  from  his  opinion :  "There  was  probably 
no  legal  excuse  for  plaintiff's  conduct  in  the  premises,  for 
he  was  legally  bound  to  observe  any  reasonable  rules  in 
force  as  to  demurrage  and  car  service."  But,  it  is  further 
said  that  appellee's  wrongful  action  did  not  justify  the  rail- 
road company  "in  violating  its  common  law  and  statutory 
obligation"  to  appellee  to  deliver  freight.  This  conclusion, 
of  course,  being  founded  on  the  principle  that  in  the  dis- 
charge of  its  duty  to  the  public  no  corporation  enjoying  a 
public  franchise  can  conduct  its  business  according  to  the 
whim  or  caprice  of  its  agents,  or,  can  arbitrarily,  without 
special  reason,  refuse  to  serve  any  one  seeking  its  service. 
Limiting  that  general  principle  to  the  matter  here  in  dispute, 
it  is  likewise,  true,  that  no  carrier  has  the  right  on  account, 
alone  of  a  dispute  arising  from  a  doubt  as  to  the  correctness 
of  a  particular  bill  or  several  bills,  for  demurrage  already 
past  due,  or  an  honest  difference  of  opinion  as  to  the  justice 
of  the  charge  on  any  number  of  cars  already  received  and 
delivered,  to  refuse  to  "switch  and  place"  other  cars  subse- 
quently received.  No  carrier  can  refuse  its  services  to  any 
one  desiring  them  on  the  ground  alone  of  an  unadjusted 
claim  then  pending,  or  on  account  of  any  previous  violation 
of  contract  by  such  person,  no  matter  how  flagrant  and  in- 
excusable, if  such  person  at  the  time  of  the  service  is  de- 
manded is  legally  entitled  thereto.  A  refusal  on  the  part  of 
the  carrier  for  such  case  would  entitle  the  person  aggrieved 
or  injured  to  recover  full  compensation,  and,  if  such 
action  was  dictated  by  vindictive  motives,  or  by  de- 
sire to  wantonly  oppress  and  injure  the  particular 
person,  the  offending  carrier  would  be  liable  to 
punitive  damages  as  well.  But  this  result  follows  not  be- 
cause the  carrier  was  a  member  of  a  car  service  association, 
but  by  reason  of  the  firmly  established  and  rigidly  adhered 
to  rule  of  law  which  makes  the  master  respond  in  damages, 
both  actual  and  exemplary,  for  every  wanton  and  wilfully 
oppressive  violation  of  duty  by  the  servant,  whether  the 
servant  committing  the  wrong  be  a  car  service  association  or 
other  agent  or  employee.  This  principle  of  law  is  of  univer- 
sal application. 


no 


It  was  the  duty  of  the  appellant,  primarily,  to  "switch 
and  place"  all  cars  coming  over  its  own  line,  05  tendered 
to  it  with  proper  ''transfer  switching  charge,"  by  any  con- 
necting line.  It  was  the  duty  of  the  appellee  to  pay  all 
freight  charges  and  demurrage  charges  due  on  his  freight 
and  the  cars  containing  the  same.  This  by  contract  entered 
into,  evidenced  by  the  bills  of  lading,  he  had  bound  him- 
self to  do.  So  long  as  appellee  complied  with  his  contract 
he  had  the  right  to  insist  on  faithful  and  prompt  compli- 
ance on  the  part  of  appellant.  More  than  this,  even  if  on 
account  of  doubts  and  disputes  as  to  the  correctness  of  jus- 
tice of  special  instances  of  charge,  freight  charges  or  de- 
murrage had  been  withheld  pending  adjustment,  this  would 
not  of  itself  absolve  the  carrier  from  the  discharge  of  its 
duty  as  to  other  car  loads  of  freight  subsequently  received. 
No  past  violation  of  contract  on  the  part  of  a  consignee  can 
justify  a  carrier  in  failing  to  discharge  a  present  duty.  But 
in  the  case  at  bar,  according  to  the  testimony  for  the  appel- 
lant not  directly  denied  by  appellee,  appellee  not  only  arbi- 
trarily refused  to  pay  demurrage  charges  which  had  accrued 
in  the  past  but  expressed  his  intention  of  persisting  in  his 
refusal  even  should  such  charges  be  justly  incurred  in  the 
future.  If  this  be  true,  appellant  was  warranted  in  its  re- 
fusal to  further  switch  and  place  cars  at  appellee's  ware- 
house. By  delivering  the  cars  at  the  warehouse  appellant 
would  have  lost  its  lien  and  could  only  have  collected  its 
charges  from  appellee  directly  and  he  had  already  evidenced 
his  intention  of  not  paying.  We  know  of  no  principle  of 
law  under  which  any  one  can  announce  an  intention  of  not 
paying  for  a  particular  service,  and  still  rightfully  demand 
that  such  service  shall  be  rendered.  Particularly  where  the 
charge  for  such  service  is  admitted  to  be  just  and  reason- 
able, and  is  in  fact  paid  by  all  others  who  enjoy  the  benefit 
of  it.  And  yet,  this  is  the  attitude  occupied  by  appellee  if 
the  testimony  for  appellant,  uncontradicted  in  this  record, 
be  true.  Nor  is  it  true  as  contended  that  consignees  are 
liable  to  imposition  in  the  collection  of  demurrage  charges 
because  of  the  rule  which  requires  that  the  payment 
of  demurrage  bills  shall  not  be  unduly  delayed,  and 
that  no  claim  of  mistake  or  over  charge  will  be  considered, 
unless  the  bill  for  demurrage,  over  which  the  dispute  arises, 
has  been  first  paid.  Car  service  associations  can  collect  de- 
murrage only  in  the  amount  and  under  the  circumstances 


Ill 

permitted  by  the  Railroad  Commission.  If  they  disregard 
those  rules  and  undertake  to  extort  more  or  to  collect  when 
not  entitled  thereto,  they  are  liable  to  all  the  penalties  pre- 
scribed against  common  carriers  for  disobedience  of  the 
mandates  of  the  Railroad  Commission.  In  addition,  the 
consignee  would  have  his  action  for  damages  for  any  ex- 
tortion which  might  be  imposed  on  him  by  collecting  more 
than  was  due,  or  for  refusing  to  "switch  and  place"  cars 
when  no  demurrage  was  due,  and  when  the  payment  of  no 
bill  really  due  had  been  unduly  delayed.  In  a  suit  for  such 
damages,  the  burden  would  be  on  the  carrier  to  prove  that 
such  unpaid  demurrage  was  properly  assessed,  was  justly 
due,  and  payment  thereof  had  .been  either  refused,  or  unduly 
delayed  after  demand  for  payment  first  made.  As  the  duty 
is  on  the  carrier  to  serve  all  patrons  alike,  in  case  of  failure 
to  do  so,  it  devolves  on  it  to  prove  facts  which  under  the 
rule  justifies  its  action.  The  law  affords  ample  protection  to 
the  consignee  against  both  extortion  and  discrimination. 

Appellee's  contention  that  he  had  a  right  to  refuse  to 
pay  because  the  bills  of  charges  were  made  out  by  direc- 
tion of  the  car  service  association  and  on  its  letter  heads, 
we  mention  simply  to  reject.  They  were  made  out  in  favor 
of  appellant,  were  due  to  appellant,  for  services  claimed  to 
have  been  rendered  by  it,  and  appellant  had  the  right  to  em- 
ploy such  lawful  agency  as  it  chose  for  the  discharge  of  its 
private  business.  It  would  scarcely  be  seriously  contended 
that  a  consignee  who  had  repeatedly  failed  to  pay  transpor- 
tation charges  when  the  freight  was  delivered  to  him  with- 
out prepayment  being  required  could  still  rightfully  demand 
that  he  be  allowed  to  continue  to  remove  the  freight  without 
first  paying  the  charges.  And  yet  the  right  of  the  railroad 
company  to  collect  freight  charges  is  no  better  established 
than  is  its  right  to  collect  demurrage  in  proper  cases.  One  is 
for  the  transportation  of  the  freight  and  the  use  of  the 
cars  in  transit;  the  other  for  the  use  of  its  track  and  rental 
for  the  cars  after  they  have  arrived  at  their  destination. 

The  evidence  adduced  on  the  trial  proved  conclusively 
that  prior  to  the  refusal  of  appellee  to  pay  demurrage  the 
same  treatment  was  accorded  him  as  all  other  similarly 
situated,  and  this  makes  manifest  the  accuracy  of  the  state- 
ment quoted  from  the  opinion  of  the  trial  Judge  that  "there 


112 

was  no  legal  excuse  for  plaintiff's  conduct  in  the  premises." 
Inasmuch,  therefore,  as  appellee  himself  violated  the  terms 
of  his  contract  of  shipment  without  "legal  excuse  for  his 
conduct,"  and  as  the  actual  damages  complained  of  were  en- 
tailed on  him  as  the  result  of  his  own  act,  this  judgment  can 
not  be  sustained.  One,  who  himself,  first  wrongfully 
breaches  a  contract,  has  no  standing  in  court  when  he  seeks 
to  recover  damages  caused  by  a  failure  of  the  other  party  to 
fulfill  his  part  of  the  same  contract. 

Reversed  and  remanded. 

MAYS  &  LONGSTREET, 
SMITH,  HIRSH  &  LANDAU, 
BLEWETT  LEE, 

Attorneys  for  Appellant, 
J.  M.  DICKINSON, 

Of  Counsel. 


,  ARMISTEAD  &  BBIEN, 
GREEN  &  GREEN, 

Attorneys  for  Appellee. 


IN  THE  SUPREME  COURT,  STATE  OF  ALABAMA. 
NOVEMBER  TERM,  1904. 

J7  South  Rep.  667.    (Ala.,  1904.) 


APPEAL  FROM  JEFFERSON  CIRCUIT. 


SOUTHERN  RAILWAY  Co. 

vs. 
LOCKWOOD  MFG.  Co. 


DOWDELL,  Judge: 

The  evidence  in  this  case  upon  the  principal  issue  in- 
volved, is  practically  without  dispute.  The  reasonableness 
of  the  railway  company's  rules,  which  were  adopted  by  the 
Alabama  Car  Service  Association  relative  to  demurrage 
charges  on  its  cars,  and  the  time  limit  in  the  placing  of  its 
cars  for  unloading,  and  the  unloading  of  the  same,  by  the 
consignees,  etc.,  as  shown  by  the  evidence,  seems  not  to  have 
been  denied  or  questioned. 

We  concur  in  the  statement  made  by  counsel  for  ap- 
pellant in  their  brief,  that  the  only  question  in  this  case 
necessary  to  be  considered,  is  whether  the  appellant  had  re- 
leased its  lien  upon  the  lumber  by  placing  the  car  on  the 
"team  track"  for  the  purpose  of  being  unloaded.  The  pro- 
position seems  quite  clear,  that  if  the  appellant,  the  Railway 
Company,  had  no  lien  upon  the  lumber,  then  in  removing 
the  car  with  the  lumber  on  it,  and  holding  the  lumber  for 
the  purpose  of  enforcing  a  pretended  lien,  it,  the  railway 
company,  would  be  guilty  of  a  conversion.  This,  we  under- 
stand, is  not  controverted  by  counsel  for  the  appellant. 

The  contention  of  the  appellee  is  that  the  placing  of  the 
car  of  lumber  on  the  "team  track"  to  be  unloaded  by  the 
consignee,  was  such  a  delivery  of  possession  of  the  property 


114 

as  amounted  to  a  release  of  whatever  lien  the  railway  com- 
pany had  on  the  lumber.  It  is  not  denied  that  the  railway 
company,  as  a  common  carrier,  had  a  lien  on  the  lumber  for 
transportation  charges,  and  for  the  demurrage  charges, 
which  had  accrued  after  notice  to  the  consignee  of  the  ar- 
rival of  the  car  of  lumber,  under  the  company's  rules.  In- 
deed, this  question  is  not  involved,  as  the  undisputed  evi- 
dence shows  that  the  charges  had  been  paid  by  the  con- 
signee, when  the  car  was  placed  on  the  "team  track"  to  be 
there  unloaded  by  the  consignee.  And  it  was  at  this  time, 
that  the  appellee,  who  was  the  consignee,  claims  that  the 
lumber  was  delivered  by,  and  passed  from  the  possession  of, 
the  railway  company  into  its  possession,  discharged  of  all 
antecedent  liens  and  not  subject  to  any  subsequent  liens.  It 
is  not  denied  that  the  car  remained  upon  the  "team  track," 
where  it  had  been  placed  by  the  railway  company  for  the  ap- 
pellee's convenience  in  unloading  the  same,  for  the  "time 
limit"  allowed  by  the  rules  of  the  railway  company,  and  that 
the  demurrage  for  which  a  lien  is  claimed  accrued  after  the 
expiration  of  the  "time  limit"  for  unloading.  As  stated 
above,  the  reasonableness  of  the  rule  as  to  "time  limit"  and 
"demurrage"  charges,  is  not  questioned,  nor  is  it  denied 
that  the  appellee  Tiad  notice  of  such  rule.  The  question  then 
is,  whether  a  lien  on  the  lumber  remaining  on  the  cars 
arose  in  favor  of  the  railway  company  for  demurrage  ac- 
cruing subsequent  to  the  delivery  in  the  manner  stated,  and 
after  the  expiration  of  the  "time  limit"  for  unloading  the  car. 

Leading  up  to  the  proposition,  it  may  be  stated,  that 
this  court  has  held  that  a  rule  of  a  railroad  company  that  a 
party  to  whom  freight  is  consigned  must  receive  the  same 
within  48  hours  after  notice,  is  a  reasonable  one,  and  a 
charge  for  storage  after  that  time  is  legal. 

Gulf  City  Constr.  Co.  vs.  L.  &  N.  R.  R.  Co.,  121  Ala., 
621. 

And  it  may  be  said,  as  a  corollary  to  this,  a  railroad 
company  may  legally  charge  storage  or  demurrage  for  its 
cars  used  and  occupied  by  consignees  beyond  a  reasonable 
time  after  the  contract  of  transportation  has  been  fulfilled. 

Miller  et  al.  vs.  Ga.  R.  R.  &  Banking  Co.,  88  Ga.,  563. 
50  Am.  &  Bng.  R.  R.  Cases,  ?p. 


See  also  20  Am.  &  Hng.  R.  R.  Cases  (N.  $.) 
where  will  be  found  a  collation  of  authorities  on  the  ques- 
tion. It  is  a  well  settled  proposition  of  law  that  a  ware- 
houseman has  a  lien  for  his  charges. 

Steinman  vs.   Wilkins,  42  Am.  Dec.,  254,  &  note  on 
page  257. 

28  Am.  &  Hng.  Ency.  of  Law  (iEd.),  663. 

It  is  equally  well  settled  that  where  a  common  carrier, 
after  the  arrival  of  freight,  gives  notice  to  the  consignee  and 
places  the  goods  in  its  warehouse,  its  liability  thereafter  is 
that  of  a  warehouseman. 

Collins  vs.  A.  G.  S.  R.  R.,  104  Ala.,  390. 

And  the  carrier  is  entitled  to  additional  compensation 
for  its  services  as  warehouseman. 

Gulf  City  Constr.  Co.  vs.  L.  &  N.  R.  R.}  supra. 

It  would  seem,  if  the  carrier  can  make  an  additional 
charge  when  it  stores  the  goods  in  its  warehouse  and  have 
a  lien  for  such  charge,  upon  like  principle  and  for  the  same 
reason,  it  may  make  an  additional  charge  and  have  a  lien 
therefor  when  the  goods  remain  in  its  cars  after  its  liability 
as  a  common  carrier  has  ceased. 

Miller  vs.  Ga.  R.  R.  Co.  etc.,  supra. 

Miller  vs.  Mansfield,  112  Mass.,  260. 

N.  O.  &  N.  E.  R.  R.  vs.  George,  35  So.  Rep.,  193. 

In  Miller  vs.  Georgia  R.  R.  &  Banking  Co.  it  is  said : 
"We  do  not  think  it  material,  as  affecting  the  right  to  make 
a  charge  of  this  character,  that  the  goods  remained  in  the 
cars,  instead  of  being  put  into  a  warehouse."  And  in  the 
case  of  N.  O.  &  N.  H.  R.  R.  Co.  vs.  George,  supra,  it  was 
said:  "There  is  no  force  in  the  argument  which  concedes 
the  right  of  the  carrier  to  make  demurrage  charges,  but  con- 
tends that  the  goods  must  be  delivered,  and  then  the  carrier 
sue  for  the  amount.  This  course  would  give  the  dishonest 
and  insolvent  an  unfair  advantage,  and  would  breed  a  multi- 
plicity of  suits." 


Ji6 

The  foregoing  authorities  fully  sustain  the  doctrine  of 
the  right  of  the  carrier  to  a  lien  upon  the  goods  transported 
for  demurrage  charges.  Coming  then  to  the  main  question 
in  the  case  before  us,  was  the  placing  of  the  car  of  lumber 
on  the  "team  track"  of  the  railway  company  for  the  purpose 
of  being  unloaded  by  the  consignee,  such  an  absolute  and 
unqualified  delivery  of  the  lumber  into  the  possession  of  the 
consignee  as  would  cut  off  any  future  right  of  lien  for  legi- 
timate charges  for  car  service,  or  demurrage,  subsequently 
accruing?  We  think  not.  The  delivery  of  the  possession  of 
the  lumber,  in  the  manner  in  which  it  was  made,  and  under 
all  the  conditions  and  circumstances,  was  a  qualified  deliv- 
ery. The  delivery  was  conditioned  upon  the  lumber  being 
unloaded  from  the  car  within  a  fixed  time,  and  upon  a  fail- 
ure of  the  consignee  to  comply  with  this  condition  additional 
rights  and  liabilities  between  the  parties  arose.  The  right 
of  the  consignee's  possession  of  the  lumber  was  accompanied 
with  the  duty  on  his  part  to  remove  the  same  from  the  car. 
It  would  hardly  be  contended  that  the  placing  of  the  car  for 
the  purpose  of  unloading  terminated  all  liability  of  the 
railway  company  both  as  carrier  and  warehouseman  while 
the  lumber  yet  remained  on  its  car.  Upon  the  same  prin- 
ciple that  a  'railway  company,  when  its  relation  becomes 
that  of  a  warehouseman,  has  a  lien  upon  goods  for  storage 
charges,  it  has  a  lien  upon  goods  for  demurrage,  or  car  ser- 
vice. A  contrary  doctrine  would  defeat  the  purpose  of  the 
rule  of  the  Car  Service  Association  adopted  by  the  railroads, 
and  which  was  made  in  the  interest  of  commerce  generally, 
and  for  the  benefit  of  shippers  as  well  as  carriers. 

The  indefinite  detention  of  cars  by  shippers  would  nat- 
urally tend  to  impair  the  ability  of  the  carrier  to  meet  the 
demands  of  commerce,  and  lessen  the  facility  of  transporta- 
tion. 

The  case  of  Lane  vs.  Old  Colony  &  Fall  River  R.  R. 
Co.,  14  Gray  (Mass.),  143,  is  somewhat  similar  in  principle 
to  the  case  in  hand.  In  that  case  the  railroad  company  had 
placed  a  shipment  of  coal  in  a  bin  on  the  company's  ground 
to  be  removed  by  the  consignee,  and  after  a  part  had  been 
hauled  away,  the  consignee  refused  to  pay  the  freight  and 
storage  charges.  It  was  held,  that  the  railroad  company 
still  had  a  lien  on  the  coal  which  had  not  been  hauled  away 
for  such  charges.  We  think  in  principle  there  can  be  no 


H7 

difference  between  a  delivery  of  the  coal  in  a  bin  to  be  taken 
and  hauled  away  by  the  consignee,  and  a  delivery  of  the 
lumber  on  the  car  on  the  railway  company's  "team  track" 
for  a  like  purpose. 

Our  conclusion  is,  that  a  lien  for  the  subsequent  charges 
for  car  service  attached  to  the  lumber  in  favor  of  the  rail- 
way company.  The  evidence  being  without  conflict,  the 
trial  court  erred  in  refusing  the  general  charge  requested  by 
the  defendant,  and  for  this  error  the  judgment  will  be  re- 
versed and  the  cause  remanded. 

Reversed  and  remanded. 

MCCLEIXAN,  HARALSON  &  TYSON  concur. 


DECISION  COMPTROLLER  OF  THE  TREASURY. 


DEMURRAGE  ON  CARS  CONTAINING  ARMOR  PLATE 

CONSIGNED  TO 

UNITED   STATES  DEPOT  QUARTERMASTER, 
SAN  FRANCISCO,  CAL. 


TREASURY  DEPARTMENT, 
Office  of  Comptroller  of  the  Treasury, 

November  25th,  1904. 

The  Atchison,  Topeka  &  Santa  Fe  Railway  Company, 
by  their  attorneys,  appealed  September  2Oth,  1904,  from  the 
action  of  the  Auditor  for  the  Navy  Department  in  disallow- 
ing in  settlement  No.  8773,  April  2d,  1904,  a  claim  of  $12  for 
demurrage  on  cars  containing  armor  plate  and  bolts  shipped 
to  San  Francisco  for  use  in  the  construction,  by  the  Union 
Iron  Works,  of  a  vessel  for  the  Navy. 


n8 

The  Auditor  allowed  by  his  settlement  $10,417.89  for 
freight  and  switching  cars,  and  disallowed  the  charge  for 
demurrage  for  the  reason  stated  by  him  that: 

"It  was  the  duty  of  the  Union  Iron  Works  Company  to 
unload  the  armor  plate,  and  therefore  the-  Government  can- 
not be  charged  with  the  demurrage." 

The  shipment  in  question  was  made  by  the  Quarter- 
master's Department,  U.  S.  Army,  from  South  Bethlehem, 
Pa.,  to  the  Depot  Quartermaster,  San  Francisco,  Cal.,  under 
Government  bill  of  lading  No.  560,  dated  September  1st, 
1902. 

The  cars  were  received  at  San  Francisco  from  Septem- 
ber nth  to  October  2d,  1902,  and  delivered  in  the  yard  of 
the  Union  Iron  Works,  whose  duty  it  was  to  unload  the 
material. 

As  to  the  cause  of  the  delay  in  unloading  which  resulted 
in  the  demurrage  claim,  the  superintending  contractor,  .U. 
S.  N.,  reported  to  the  Auditor  February  ist,  1904: 

"The  delay  in  releasing  the  cars  was  caused  by  the  fact 
that  at  the  time  of  their  arrival  a  large  number  of  freight 
cars  were  in  the  yard,  which  prevented  them  from  being 
unloaded  immediately.  The  delay,  therefore,  was  not  caused 
by  any  failure  of  the  Railway  Company.  It  is  the  Union 
Iron  Works'  duty  to  unload  all  armor  plate  at  their  ex- 
pense." 

The  charges  made  as  demurrage  are  at  the  rate  of  $i 
per  day  for  each  car  after  the  expiration  of  forty-eight  hours 
allowed  for  unloading.  This  charge  is  made  in  accordance 
with  rules  of  railroad  associations  and  adopted  by  each  rail- 
road company  as  its  own  rules. 

Demurrage  has  only  within  recent  years  been  recog- 
nized in  connection  with  carriage  of  freight  by  railroads. 

In  early  cases  it  was  held  not  to  apply  to  railroads  (C. 
&  N.  W.  Ry.  vs.  Jenkins,  103  Ills.,  588),  but  the  growth  and 
consequent  largely  increased  importance  of  the  railroad  car- 


u9 

rying  industry  have  brought  about  a  recognition  by  the 
courts  of  the  right  claimed  by  railroad  companies  to  enforce 
payment  of  such  claims,  by  lien  or  otherwise,  when  deten- 
tion of  their  cars  occurs  without  fault  of  theirs. 


It  is  said  in  Baldwin's  American  Railway  Law,  1904, 
page  357  • 

"A  rule  imposing  a  'demurrage'  charge  of  a  reasonable 
sum,  such  as  a  dollar  a  day,  for  loaded  cars  which  the  con- 
signee fails  to  unload  within  forty-eight  hours  after  their 
arrival,  is  a  reasonable  one.  Cars  are  designed  for  vehicles, 
not  storehouses.  Such  a  rule  enters  into  the  contract  of  ship- 
ment, and  if  it  has  properly  been  made  public,  binds  all 
consignees,  though  without  actual  notice  of  it." 

See  also  Miller  vs.  Ga.  R.  R.  Co.  88  Ga.,  563. 
Ky.  Wagon  Co.  vs  L.  &  N\  Ry.  Co.  98  Ky.}  152. 
Pa.  R.  R.  Co.  vs.  Midvale  Steel  Co.  201  Pa.  St.,  624. 
N.  &  W.  R.  R.  Co.  vs.  Adams,  po  Va.,  393. 
Miller  vs.  Mansfield,  112  Mass.,  260. 
And  Schumaker  vs.  C  &  N.  W.  Ry.  Co.,  69  N.  B.  Rep., 
825. 

In  the  last  cited  case  the  court  said : 

"Nor  do  we  think  it  necessary  to  the  existence  of  such 
lien  that  it  arise  from  a  specific  contract  providing  for  the 
same,  but  that  such  right  may  arise  by  implication,  as  in  the 
case  of  warehouse  charges  to  a  railroad  company  that  has 
stored  goods  transported  by  it,  when  not  received  promptly 
at  the  place  of  delivery." 

And  in  the  case  of  Pa.  R.  R.  vs.  Midvale  Steel  Co. : 

"The  plaintiff  has  an  unquestionable  right  as  a  common 
carrier  to  make  reasonable  rules  to  speed  the  unloading  of 
its  cars.  Cars  are  for  the  transportation  of  freight,  not  for 
its  storage." 


120 

The  right  of  a  railroad  company  to  charge  demurrage 
cannot  now  be  doubted  and  the  Auditor  does  not  question 
the  liability  of  the  Government  for  demurrage  in  proper 
cases,  but  holds,  that  it  is  not  liable  in  this  case  for  the 
reason  that  the  detention  was  due  to  no  fault  of  the  Govern- 
ment, but  owing  to  the  delay  of  the  Union  Iron  Works. 

The  armor  plate  and  other  material  with  which  the  cars 
were  loaded  was  the  property  of  the  Government  and  con- 
tinued all  the  time  in  its  ownership ;  the  contract  for  its  car- 
riage was  between  the  United  States  and  the  railroad;  the 
Union  Iron  Works  Company  was  not  known  in  the  trans- 
action and  there  was  no  privity  of  contract  whatever  be- 
tween them  and  the  railroad  company.  For  these  reasons, 
I  am  of  the  opinion  that  the  United  States  is,  primarily, 
liable  for  the  demurrage  charged.  The  action  of  the  Audi- 
tor is,  therefore,  disaffirmed  and  a  difference  found  in  favor 
of  the  appellant  of  twelve  ($12)  dollars,  as  per  certificate 
herewith. 

I  am  of  the  opinion  further,  that  as  it  was  the  duty  of 
the  Union  Iron  Works  to  unload  the  cars  at  their  own  ex- 
pense and  as  the  detention  was  without  fault  of  the  Govern- 
ment, but  was  caused  by  the  congested  condition  of  the 
Union  Iron  Works'  yard,  it  is  liable  to  the  United  States  for 
any  damage  caused  by  the  delay.  The  Auditor  should,  after 
payment  of  the  claim  for  demurrage  to  the  railroad,  state 
an  account  and  charge  the  amount  to  the  Union  Iron  Works. 


(Signed)  R.  J.  TRACEWEU,, 

Comptroller. 


x: 

121 


COMPLAINT  OF 
THE  COAL  SHIPPERS' ASSOCIATION  OF  CHICAGO 

FILED  WITH   THE  ATTORNEY  GENERAL  OF  THE  UNITED 
STATES,  CHARGING  THE 

CHICAGO  CAR  SERVICE  ASSOCIATION 

WlTH   BEING  A   COMBINATION   IN   RESTRAINT   OF  TRADE   AND 
COMMERCE  CONTRARY  TO  THE  SHERMAN 

ANTI-TRUST  LAW. 

Report  No.  j. 

Chicago,  111.,  February  n,  1905. 

Counsel  for  the  Chicago  Car  Service  Association  was 
notified  March  24th,  1904,  by  the  Hon.  S.  H.  Bethea,  United 
States  District  Attorney  at  Chicago,  that  the  Attorney  Gen- 
eral had  referred  to  him  for  investigation  and  report  a  bill 
of  complaint  filed  on  behalf  of  the  Coal  Shippers'  Associa- 
tion of  Chicago  which  charged  the  Chicago  Car  Service, 
Association  with  being  in  restraint  of  trade  and  commerce. 

As  Mr.  Bethea  requested  representatives  of  the  asso- 
ciation members  thereof  to  appear  before  him  at  early  date, 
it  was  thought  best  to  call  a  meeting  of  the  General  .Counsel 
of  the  various  railroad  companies  comprising  the  Chicago 
Car  Service  Association.  At  this  meeting  a  committee  of 
five  was  appointed  to  act  with  Counsel  for  the  Association 
and  prepare  for  the  hearing  before  the  United  States  Dis- 


122 


trict  Attorney.     This  committee  was  composed  of  the  fol- 
lowing attorneys : 

MR.  E.  A.  BANCROFT,  C.  &  W.  L,  Belt  Rys. 

MR.  W.  J.  CALHOUN,  B.  &  O.  R.  R. 

MR.  J.  M.  DICKINSON,  I.  C.  R.  R. 

MR.  R.  A.  JACKSON,  C.  R.  I.  &  P.  Ry. 

MR.  S.  A.  LYNDE,  C.  &  N.  W.  Ry. 

MR.  F.  R.  BABCOCK,  Counsel  for  the  Association. 


After  several  conferences  of  Counsel,  it  was  decided  to 
recommend  a  revision  of  the  original  agreement  and  rules 
of  the  Chicago  Car  Service  Association.  May  4th,  1904, 
the  revised  agreement  and  rules  were  submitted  to  the 
United  States  District  Attorney,  and  the  legality  of  the 
association,  and  the  questions  presented  by  the  bill  of  com- 
plaint of  the  Coal  Shippers'  Association,  were  argued  at  this 
conference.  The  Chicago  Car  Service  Association  was  rep- 
resented by  Mr.  F.  R.  Babcock,  Association  Counsel;  Mr. 
A.  W.  Sullivan,  chairman,  Executive  Committee ;  Mr.  E.  A. 
Bancroft,  Chairman  of  Special  Committee  of  Counsel,  and 
Mr.  C.  W.  Sanford,  Manager  of  the  Association.  The  Coal 
Shippers'  Association  was  represented  by  Mr.  B.  F.  Sipp, 
Commissioner,  and  Mr.  M.  F.  Gallagher,  Counsel. 

After  extended  argument  by  both  sides,  the  meeting 
was  adjourned  with  the  understanding  that  the  Coal  Ship- 
pers' Association  would  file  a  reply  to  statement  submitted 
by  Association  Counsel.  After  statement  was  filed  by  the 
Coal  Shippers'  Association,  Counsel  for  the  Association  filed 
•a  reply,  giving  further  information  and  statistical  and  com- 
parative statements  to  conclusively  refute  the  charges  of  the 
Coal  Shippers'  Association.  Another  meeting  was  held 
June  1 3th,  1904,  for  further  argument,  and  at  that  time  a 
brief  of  authorities  was  filed  by  the  Car  Service  Association, 
together  with  the  statement  above  referred  to. 

At  this  meeting  Mr.  Bethea  suggested  further  amend- 
ments of  the  Car  Service  Association's  agreement  and  rules, 
and  the  matter  was  taken  under  advisement  by  counsel  rep- 


123 

resenting  the  Association.  Subsequent  to  this  time,  after  a 
careful  consideration  of  the  matter  and  all  parties  having 
been  duly  notified,  counsel  decided  to  present  an  entirely  new 
agreement  and  rules.  This  new  agreement  and  rules  were 
carefully  prepared  and  submitted  to  the  Chicago  Car  Service 
Association  and  to  the  General  Managers'  Association  of 
Chicago  and  was  adopted  by  them,  to  go  into  force  and  ef- 
fect on  September  ist,  1904. 

On  advice  of  counsel,  the  Chicago  Car  Service  Asso- 
ciation was  dissolved  August  3ist,  1904,  and  The  Chicago 
Car  Service  Association  organized  with  agreement  and  rules, 
effective  at  the  present  time.  A  copy  of  such  agreement 
and  rules  was  submitted  to  the  United  States  District  Attor- 
ney August  1 8th.  1904,  and  by  him  referred  to  the  Attorney 
General  of  the  United  States,  who  advised  Mr.  M.  F.  Galla- 
gher, Counsel  for  the  Coal  Shippers'  Association,  under 
date  of  January  25th,  1905,  as  follows : 


"Washington,  D.  C.,  January  25,  1905. 

"MR.  M.  F.  GALLAGHER, 

"Attorney  at  Law,  Monadnock  Building, 
"Chicago,  Illinois. 

"SiR: 

"After  careful  consideration  of  the  complaint  of  the 
Coal  Shippers'  Association  against  the  Chicago  Car  Ser- 
vice Association  and  your  argument  in  support  thereof,  I 
have  reached  the  conclusion  that  the  Car  Service  Association 
does  not  directly,  if  at  all,  restrain  interstate  or  foreign 

"Respectfully, 

"WILLIAM  H.  MOODY, 
"Attorney  General" 


124 


FRANKLIN   (20)   CIRCUIT  COURT, 
MAY  4,  1905. 


6  Ohio  Circuit  Court  Reports  (New  Series)  638. 
27  Ohio  Circuit  Courts  588. 


RAILROAD  COMPANY'S  LIEN  FOR  DEMURRAGE 
CHARGES. 

PITTSBURGH,  C.,  C.  &  ST.  L.  RY. 

vs. 
H.  L.  MOOAR  LUMBER  Co. 


1.  Demurrage — Lien  for  same. 

A  railroad  company  has  a  common-law  lien  upon  the 
property  in  a  car,  for  its  proper  demurrage  charges  against 
such  car,  and  may  enforce  the  same  by  refusing  to  deliver 
such  property  until  payment  of  the  demurrage  charges  has 
been  made. 

2.  Lien  Exists  Independently  of  Stipulation  in  Con- 
tract of  Shipment. 

Such  lien  exists  independently  of  any  stipulation  there- 
for in  the  contract  of  shipment,  and,  in  an  action  to  enforce 
the  same  it  is  not  necessary  to  aver  or  prove  a  special  con- 
tract with  reference  thereto. 


Error  to  Franklin  Common  Pleas  Court. 

HENDERSON  &  LIVESAY  and  K.  E.  BURR,  for  plaintiff 
in  error. 

A.  E.  ADDISON,  for  defendant  in  error — Huston. 


125 

M.  E.  THRAILKILL,   for    defendant    in    error — H.  L. 
Mooar  Lumber  Co. 

DUSTIN,  WILSON  AND  SULLIVAN,  JJ. 


On  June  23,  1902,  Southern  Railway  car  No.  8,022, 
loaded  with  lumber  consigned  to  the  defendant  in  error,  the 
H.  L.  Mooar  Lumber  Co.,  arrived  in  the  yards  of  the  plain- 
tiff in  error,  the  Pittsburgh,  Cincinnati,  Chicago  &  St.  Louis 
Railway  Company  at  Columbus,  notice  of  the  arrival  of  the 
car  being  sent  to  the  defendant  in  error  by  the  plaintiff  in 
error  on  the  same  day. 

On  the  following  day  the  defendant  in  error  sent  its 
men  to  the  railroad  yards  to  inspect  the  lumber,  and  the 
drivers,  after  looking  about  the  yards  and  being  unable  to 
find  the  car,  returned  to  the  lumber  company's  office  and  re- 
ported the  car  not  there.  The  drivers  made  other  trips  to 
the  yards  from  time  to  time  in  search  of  the  car,  consuming 
from  twelve  to  fourteen  days  in  this  way,  but  they  failed  to 
go  to  the  railroad  offices  and  ask  whether  the  car  had  ar- 
rived or  to  make  inquiry  for  the  car  of  the  railroad  yard 
men,  who  knew  and  could  have  told  them  its  location. 

On  July  5  the  drivers  went  to  the  railroad  offices  and 
there  paid  the  freight  on  the  car,  but  during  the  interim 
between  June  23  and  July  5,  demurrage  charges  to  the 
amount  of  eight  dollars  had  accrued  and  the  railroad  com- 
pany refused  to  place  the  car  where  it  could  be  unloaded 
until  these  charges  had  been  paid. 

The  lumber  company  refused  to  pay  the  demurrage,  and 
the  railroad  company,  declining  to  allow  the  car  to  be  un- 
loaded, continued  to  hold  it  until  December  23,  at  which  time 
the  demurrage  amounted  to  $138,  and  the  lading  of  the  car 
was  turned  over  to  the  defendant  in  error,  Archibald  H. 
Huston,  for  storage,  Mr.  Huston  advancing  the  company's 
charges  in  accordance  with  the  usual  custom  existing  be- 
tween himself  and  the  railroad  company. 

On  December  24,  while  the  lumber  was  being  unloaded 
and  hauled  from  the  car  to  the  storage  warehouse,  the  lum- 
ber company  seized  the  lumber  under  a  writ  of  replevin, 


126 

and  in  February,  1904,  the  case  was  tried  to  a  jury,  the  jury, 
under  instructions  from  the  court,  rendering  a  verdict 
against  the  railroad  company  for  its  demurrage,  the  court's 
charge  being,  in  substance,  that,  in  the  absence  of  a  contract, 
no  lien  in  favor  of  a  railroad  company  for  its  demurrage 
charges  exists. 


The  following  was  the  trial  judge's  charges  upon  this 
point : 

"...  Upon  receipt  of  the  notice  (of  the  arrival  of  the 
car)  it  was  the  duty  of  the  plaintiff  to  go  to  the  office  of  the 
railway  company  and  pay  the  freight  or  tender  the  same. 
It  was  not  sufficient  for  him  to  'Send  his  man  to  the  railway 
yards  to  hunt  for  the  car  of  lumber. 

"  .  .  .  The  plaintiff,  therefore,  could  not  object  to  a 
charge  for  demurrage  on  this  car  8,022  after  the  two  days, 
as  he  did  not  pay  the  freight  and  demand  that  the  car  be 
turned  over  to  him  to  be  unloaded. 

"But  the  company  could  not  demand,  on  its  part,  that 
this  demurrage  should  he  paid  as  a  condition  of  turning  the 
car  over,  unless  it  had  a  lien  for  the  demurrage.  Now  in 
the  absence  of  any  contract  for  such  a  lien,  it  does  not  exist 
at  law  and  the  company  must  collect  its  claim  for  demurrage 
as  ordinary  debts  are  collected  and  cannot  hold  the  property 
for  the  demurrage.  I  find  there  is  no  evidence  in  the  case 
of  such  a  contract  as  to  this  car,  and  the  defendant,  the  rail- 
way company,  does  not  state  in  its  answer  that  there  was  a 
stipulation  in  the  bill  of  lading  that  such  charges  should  be 
a  lien.  It  follows,  therefore,  that  as  to  this  car,  8,022,  the 
plaintiff  having  paid  the  freight,  was  entitled  to  the  posses- 
sion of  the  lumber  and  your  verdict  should  be  in  his  favor." 


A  motion  for  new  trial  having  been  overruled  and  judg- 
ment rendered  against  the  railroad  company,  a  reversal  of 
the  judgment  is  here  sought  on  the  sole  ground  of  error  in 
the  court's  charge  to  the  jury. 


127 

DUSTIN,  J. : 

"We  think  under  the  authorities  cited  in  the  brief  of 
plaintiff  in  error  that  the  railway  company  had  a  common- 
law  lien  on  the  lumber  for  'demurrage/  and  that  it  was  not 
necessary  to  aver  or  prove  a  special  contract  with  reference 
thereto.  It  was  therefore  error  for  the  Court  to  charge  that 
in  absence  of  averment  and  proof  as  to  the  lien  it  did  not  at- 
tach, and  that  the  verdict  as  to  car  8,022  should  be  for  the 
lumber  company. 

"The  special  findings  of  fact  were  not  inconsistent  with 
the  general  verdict. 

"The  judgment  of  the  Common  Pleas  Court  on  the  first 
cause  of  action  will,  therefore,  be  reversed  and  remanded 
for  new  trial." 


128 


STATE  OF  LOUISIANA,   PARISH   OF  ORLEANS, 
CITY  OF  NEW  ORLEANS. 


COURT  OF  APPEAL  IN  AND  FOR  THE  PARISH  OF  ORLEANS. 
UNRBPORTBD. 

ILLINOIS  CENTRAL  RAILROAD  COMPANY,  AND  THE  YAZOO  & 
MISSISSIPPI  VALLEY  RAILROAD  COMPANY 

vs. 

B.  GAIRARD  FILS  AND  THE  COMPTOIR  NATIONAL  D'ESCOMPTB 

DE  PARIS. 

No.  3542. 
COURT  OF  APPEAL,  PARISH  OF  ORLEANS. 


SYLLABUS. 

1.  It  is  within  the  scope  of  the  authority  and  powers 
of  the  Railroad  Commission  of  the  State  of  Louisiana  to 
adopt  and  promulgate  rules  and  regulations  providing  pen- 
alties for  detention  of  freight  cars  having  for  their  purpose 
the  orderly  and  expeditious  conduct  of  freight  traffic  and 
other  business  of  Railroads  operating  in  this  State. 

2.  In  the  absence  of  a  specific  anterior  contract  reliev- 
ing the  shipper  of  the  lawful  charges  imposed  by  the  Rail- 
road Commission,  said  charges  are  held  to  be  recoverable. 

Affirmed. 


I29 


No.  3542. 
COURT  OF  APPEAL,  PARISH  OF  ORLEANS. 

ILLINOIS    CENTRAL    AND    YAZOO    &    MISSISSIPPI    VALLEY 
RAILROAD  COMPANIES 

vs. 

B.   GAIRARD  FILS  AND  COMPTOIR  NATIONAL  D'ESCOMPTE 

DE  PARIS. 


ESTOPINAL,  /.  Delivered  the  Opinion  and  Decree  as 
follows,  to-wit: 

Plaintiffs,  who  are  common  carriers,  transported  at 
various  times  during  the  year  1900  a  number  of  cars  of 
staves  to  New  Orleans,  consigned  to  John  F.  Lafont  for  his 
principal,  Gairard  Fils,  of  Marseilles,  France,  and  allege 
that  the  defendant  is  indebted  to  them  in  the  sum  of  One 
Thousand  and  Sixty-nine  Dollars  ($1069.00),  for  car  ser- 
vice or  demurrage. 

This  action  is  brought  upon  a  bond  signed  by  defend- 
ant, B.  Gairard  Fils  and  the  Comptoir  National  d'Escompte 
de  Paris,  to  cover  the  amount  of  demurrage  alleged  to  have 
been  incurred  by  the  defendant,  the  bond  being  furnished  by 
reason  of  the  fact  that  at  the  moment  that  the  demurrage 
was  insisted  upon,  a  vessel  was  lying  at  the  dock  ready  to 
take  on  the  staves,  and  it  was  agreed  that  a  bond  should  be 
substituted  for  the  staves  in  order  that  the  parties  might  be 
able  to  test  their  rights  legally  to  the  same  effect  as  if  the 
staves  were  in  possession  of  the  plaintiffs,  the  Comptoir  Na- 
tional d'Escompte  de  Paris  is  made  party  as  surety  on  tins 
bond. 

Plaintiffs  abandoned  a  part  of  their  claim  and  judg- 
ment was  rendered  below  for  the  sum  of  Nine  Hundred  and 
Seventeen  Dollars  ($917.00),  with  interest  and  costs. 


130 

From  the  judgment  defendants  appeal,  urging  various 
grounds  for  reversal. 

Defendant  avers  that  he  was  never  advised  that  his 
property  was  or  would  be  subject  to  demurrage  charges, 
and  that  in  the  absence  of  a  specific  contract  permitting  said 
charges,  none  could  be  made. 

That  the  respondent's  property  was  not  subject  to>such 
demands  and  that  plaintiff  companies  had  no  legal  right  to 
retain  or  withhold  it  after  demand  made  for  its  delivery. 

That  the  Railroad  Commission  of  Louisiana  had  not 
then  adopted  any  rules  or  regulations  governing  or  controll- 
ing the  issues  herein  raised  between  plaintiffs  and  re- 
spondent. 

That  if  it  should  be  found  that  the  rule  of  the  Railroad 
Commission  relied  upon  by  plaintiffs  was  in  force,  that  the 
same  is  unjust,  inequitable,  discriminative,  etc. 

It  appears  that  the  Railroad  Commission  of  Louisiana, 
a  creature  of  the  Constitution  of  1898,  adopted  a  number  of 
regulations  for  the  purpose  of  preventing  the  unnecessary 
detention  of  freight  car  equipment,  and  thereby  keep  the 
same  in  the  legitimate  service  of  transportation,  clearly  a 
right  which  the  Commission  may  exercise  as  being  within 
the  powers  delegated  to  it. 

These  rules  of  the  Commission  became  effective  on 
August  2d,  1900,  and  Section  7  of  Rule  3  contains  this  pro- 
vision : 

"On  all  cars  containing  export  freight,  ten  days  free  of 
charge  will  be  allowed." 


Section  I  of  Rule  4  provides  that : 

"At  the  expiration  of  the  free  time  allowed,  a  charge 
of  One  Dollar  per  day  or  fraction  thereof  shall  be  made  and 
collected  upon  all  cars  subject  to  car-service  charges." 


The  above  cited  rules,  as  well  as  others  on  the  same 
subject  matter  adopted  by  the  Railroad  Commission,  were 
addressed  to  the  Louisiana  Car  Service  Association,  and 
they  were  ordered  put  in  effect  by  said  Association. 

This  the  Association,  which  stands  for  and  names  all 
the  railroads  centering  in  New  Orleans,  proceeded  to  do. 

Prior  to  the  adoption  of  the  rule  in  question  in  August, 
1900,  the  rules  in  force  relative  to  car  service  in  connection 
with  export  freight  provided  that  when  the  cars  reached 
New  Orleans,  if  the  name  of  the  vessel  by  which  the  freight 
was  to  be  exported  was  given  within  ten  days  after  the  ar- 
rival of  the  cars,  the  exporter  was  not  called  upon  to  pay 
any  demurrage  or  car  service,  no  matter  how  long  there- 
after it  would  be  before  the  vessel  arrived. 

Respondent,  together  with  other  exporters,  is  shown  to 
have  conducted  his  export  trade  under  this  old  rule  adopted 
by  the  transportation  officials  of  each  railroad  company,  who 
then  composed  what  was  known  as  the  Executive  Commit- 
tee of  the  Car  Service  Association. 

When,  however,  the  car  service  rule  adopted  in  August, 
1900,  by  the  Louisiana  Railroad  Commission,  permitting 
free  use  of  cars  for  ten  days  and  demurrage  charges  of  One 
Dollar  ($1.00)  per  car  per  day  after  expiration  of  ten  days 
was  attempted  to  be  enforced,  the  record  shows  that  a  loud 
protest  went  up  from  the  exporters  at  this  port,  and  that  in 
consequence  the  rule  was  suspended  altogether  until  the 
I9th  day  of  September,  1900. 

The  complaint  on  the  part  of  the  exporters  against  the 
enforcement  of  the  car  service  rules  in  August  was  placed 
on  the  ground  that  they  had  not  been  given  sufficient  time 
and  notice  of  the  operation  and  application  of  the  rules ;  but 
the  testimony  shows  that  Mr.  Lafont,  defendant's  agent  in 
New  Orleans,  took  an  active  part  in  the  conferences  with 
the  railroad  officials  which  finally  culminated  in  the  suspen- 
sion of  the  rules  until  September  I9th,  1900,  which  fact 
necessarily  destroys  the  defense  made,  of  want  of  proper 
notice  of  the  enforcement  of  the  rule  after  September  I9th. 


132 

The  demurrage,  or  car  service,  is  charged  for  the 
period  between  the  iQth  of  September  and  first  days  of  No- 
vember. 


As  to  certain  material  facts  and  agreements,  there  can 
be  no  question  in  the  face  of  the  subjoined  admissions, 
to- wit : 

First.  It  is  admitted  that  plaintiffs  are  common  car- 
riers, engaged  in  the  operation  of  steam  railroads,  and  in 
the  transportation  of  freight  and  passengers,  between 
points  in  the  State  of  Louisiana,  and  from  points  in  the 
State  of  Louisiana  to  points  in  other  States,  and  from  points 
in  other  States  to  points  in  the  State  of  Louisiana. 

Second.  It  is  admitted  that  the  cars  described  in  the 
four  lists  marked,  respectively,  Pi,  P2,  ?3,  and  ?4,  are  the 
cars  on  which  the  demurrage,  or  car  service,  is  claimed  in 
the  present  case. 

Third.  It  is  admitted  that,  should  the  court  find  that 
any  demurrage,  or  car  service,  whatever  is  due  to  the  plain- 
tiffs for  the  detention  of  cars  described  in  the  above  men- 
tioned list,  then  that  the  defendants  are  responsible  therefor, 
and  judgment  shall  be  rendered  against  them  for  such 
amount  as  the  court  may  find  to  be  due. 

Fourth.  It  is  admitted  that  the  lists  aforesaid  correctly 
describe  the  numbers  of  the  cars,  the  initials  of  the  same,  the 
time  of  their  arrival,  the  time  the  consignees  were  notified, 
the  time  the  consignees  ordered  the  cars  placed,  and  the 
time  the  cars  were  released. 

Fifth.  It  is  admitted  that  if  the  court  should  find  that 
any  demurrage,  or  car  service,  is  due  to  the  plaintiffs  under 
the  circumstances  which  may  be  developed  in  the  case,  then 
it  is  admitted  that  the  amount  of  the  demurrage,  as  figured 
out  by  the  plaintiffs  in  the  said  lists,  is  correctly  figured, 
except  as  to  the  eighteen  cars  indicated  by  red  crosses  on 
the  lists  aforesaid,  and  as  to  which  cars  the  plaintiff  aban- 
dons all  claims  for  demurrage. 


The  only  question  for  the  court  to  determine  is  whether 
the  rule  adopted  by  the  Car  Service  Association  in  August, 
1900,  which  date  was  extended  by  agreement  to  September 
1 9th,  1900,  shall  govern  in  determining  car  service,  or  de- 
murrage, due  by  defendants,  or  whether  the  old  rule  shall 
prevail. 

There  is  nothing  in  the  record  to  show  that  other  ex- 
porters were  exempted  from  the  rules  of  1900,  and  La  font's 
contention  that  he  should  not  be  governed  by  the  same  rules 
that  the  other  exporters  were,  because  of  the  existence  of  a 
contract  between  the  railroad  company  and  himself  and 
principals  relative  to  demurrage  charges,  is  not  tenable. 

A  letter  written  by  Lafont  to  one  of  the  plaintiff's 
agents  is  the  document  relied  upon  to  establish  specific  con- 
tract relations. 

This  letter  simply  instructs  the  agent  at  New  Orleans 
as  to  what  ships  he  should  make  delivery  of  defendant's 
staves,  and  contains  no  conditions  or  elements  going  to  make 
up  a  contract  between  the  railroad  company  and  Mr.  La- 
font  relative  to  freight  rates  or  car  service  to  be  charged. 

We  are  of  opinion  that  not  only  has  the  railroad  com- 
pany and  the  Louisiana  Car  Service  Association  a  right  to 
adopt  rules  regulating  the  use  of  freight  cars,  but  that  rules 
of  that  character  are  absolutely  essential  for  insuring  proper 
and  expeditious  disposition  of  freights  by  preventing  the  un- 
reasonable detention  and  congesting  of  such  cars,  and  that 
the  rules  adopted  here  are  not  unjust  or  discriminating. 

We  quite  agree  with  the  learned  counsel  for  defendants 
that  if  there  was  shown  to  exist  a  contract  anterior  to  the 
adoption  of  the  car  service  rule,  to  be  operative  throughout 
the  stave  season  of  1900,  said  rules  would  be  inoperative  as 
to  defendants,  but  we  cannot  agree  with  him  that  the  sub- 
joined letter  discloses  such  a  contract  as  would  exempt  de- 
fendants from  the  operation  of  any  rules  fixing  charges  for 
car  service  or  any  other  reasonable  and  lawful  rules  that 
they  might  deem  necessary.  In  the  next  place  the  letter  is 
not  even  addressed  to  an  official  of  the  railroad  company 
shown  to  have  the  authority  to  enter  into  a  contract  of  this 
nature,  and  plaintiff  denies  that  the  person  addressed  has 
any  authority  in  the  premises. 


134 
The  letter  in  question  reads  : 

New  Orleans,  July  24,  1900. 


MR.  C.  T. 
Gi. 

I.  C.  R.  R.  Co., 
City. 

DEAR  SIR: 

Please  take  notice  that  all  car  loads  of  claret  staves 
shipped  or  in  course  of  shipment  to  my  address  from 
Shreveport,  La.,  or  all  Mississippi  points,  through  either  the 
I.  C.  or  Y.  &  M.  V.  R.  R.  by 

1.  Sutherland  Innes  Co. 

2.  M.  Vuk  &  Sons, 

3.  Leopold  Kern, 

4.  Max  Levy, 

5.  Austro-  American  Stave  and  Lumber  Co., 

are  intended,  with  all  other  stock  of  mine,  laying  at  Stuy- 
vesant  Docks  (7  cars),  and  Southport  (68  cars)  to  the  S.  S. 
"Valentia"  for  Bordeaux. 

This  steamship  is  due  in  New  Orleans  by  the  26th  to 
28th  inst.  ;  she  will  take  about  275  car  loads  of  staves,  all  at 
your  terminals. 

The  S.  S.  "Soluble"  will  follow,  for  same  port,  on  or 
about  August  I5th,  and  the  S.  S.  "Woodleigh"  on  or  about 
September  ist,  all  loading  at  your  terminals. 

Yours  truly, 
[Signed]  J.  F.  LAFONT. 


This  letter  appears  to  us  to  be  perfectly  plain  and  ex- 
plicit, and  is  nothing  more  than  a  note  of  instructions  to  the 
terminal  agent,  advising  him  as  to  the  disposition  to  be 
made  of  defendants'  property. 


135 


Our  attention  is  directed  to  a  decision  in  158  U.  S.,  p. 
98,  (Railroad  Company  vs.  HeiHy),  when  the  Court  held 
that,  even  though  the  rate  was  fixed  in  the  bill  of  lading, 
and  said  rate  was  less  than  the  tariff  rate  posted  by  the  rail- 
road company,  under  the  Interstate  Commerce  Act.  The 
railroad  company  was  entitled  to  claim  and  recover  under 
printed  tariff  in  accordance  with  the  Interstate  Commerce 
Act.  The  case  at  bar  is  measurably  stronger  since  plaintiff 
asks  no  more  than  the  rates  fixed  by  the  Railroad  Commis- 
sion. 

The  right  of  common  carriers  to  charge  storage  or  de- 
murrage for  detention  of  their  cars  by  consignees  over  the 
time  allowed,  is  too  well  settled  to  need  discussion  here. 

We  find  no  error  in  the  judgment  rendered  below,  and 
it  is  hereby  affirmed,  defendants  to  pay  costs  in  both  courts. 


CHAS.  HANTEL, 
Clerk  of  the  Court  of  Appeal. 

New  Orleans,  May  26th,  1905. 
[A  true  copy.] 


136 

No.  763. 
T.  M.  KEHOE  &  Co. 

vs. 
ATLANTIC  COAST  LINE  RAILROAD  COMPANY 


No.  764. 
T.  M.  KEHOE  &  Co. 

vs. 
SEABOARD  AIR  LINE  RAILWAY. 


No.  765. 
T.  M.  KEHOE  &  Co. 

vs. 
PHILADELPHIA  &  READING  RAILWAY  COMPANY. 


No.  766. 
T.  M.  KEHOE  &  Co. 

vs. 
CHARLESTON  &  WESTERN  CAROLINA  RAILWAY  COMPANY. 

ii    I.  C.  C.  Rep.  166. 
DECIDED  AUGUST  15,  1905. 


Defendants'  established  charge  of  $1.00  per  day  for  car 
demurrage  held  upon  the  record  in  these  cases  to  be  just 
and  reasonable. 

MR.  BENSON  STIMSON,  for  Complainant. 


137 

MR.  PERKINS  BAXTER,  for  Charleston  &  Western  Caro- 
lina Ry.  Co.;  Atlantic  Coast  Line  Railroad  Co.,  and  Sea- 
board Air  Line  Railway. 

MR.  C.  HEEBNER,  for  Philadelphia  &  Reading  Ry.  Co. 


REPORT    AND   OPINION    OF   THE    COMMISSION. 

PROUTY,  Commissioner: 

The  above  four  cases  were  heard  together  and  the 
question  presented  is  identical  in  all.  The  complainants  are 
shippers  of  hay  from  Terre  Haute,  Indiana,  to  various 
points  in  Southeastern  Territory  and  they  complain  that 
certain  demurrage  charges  assessed  and  collected  upon  cer- 
tain of  their  shipments  of  hay  are  unreasonable.  There  is 
no  dispute  as  to  the  essential  facts.  All  the  defendants  have 
in  force  car  service  rules  which  allow  48  hours  free  time  and 
assess  a  demurrage  charge  of  $1.00  per  day  after  the  expir- 
ation of  that  time,  and  the  demurrage  charges  in  question 
were  in  all  cases  assessed  properly  in  accordance  with  these 
rules.  The  only  contention  is  as  to  the  amount. 

In  all  these  cases  the  cars  in  which  the  hay  was  trans- 
ported were  owned  by  some  railroad  other  than  the  one  as- 
sessing the  demurrage  charge,  and  it  was  admitted  that  the 
defendant  railroads  paid  for  the  use  of  these  cars  20  cents 
per  day.  The  complainants  insisted  that  it  was  unreason- 
able for  the  defendants  to  charge  them  $1.00  per  day  when 
they  only  paid  20  cents  themselves ;  and  this  was  the  only 
testimony  introduced  by  the  complainants  bearing  upon  the 
reasonableness  of  this  charge.  The  defendants  urged  that 
20  cents  a  day  was  not  supposed  to  represent  the  fair  rental 
value  of  a  car  but  was  simply  an  arbitrary  sum  agreed  upon 
among  the  various  railroads  for  the  purpose  of  settling  car 
accounts  with  each  other.  Their  testimony  tended  to  show 
that  the  rental  value  of  a  car  was  much  greater  than  $1.00 
per  day  and  that  a  demurrage  charge  much  in  excess  of  the 
sum  collected  might,  therefore,  have  been  properly  assessed. 

If  the  reasonableness  of  this  demurrage  charge  de- 
pended upon  the  fair  rental  value  of  a  freight  car  we  should 
be  disposed,  to  hold  with  the  complainants.  The  witnesses 
on  the  part  of  the  defendants  testified  that  a  freight  car 


138 

would  earn  on  the  average  approximately  $2.20  per  day  and 
that,  therefore,  this  was  a  fair  charge  for  the  use  of  that 
car.  It  appeared  that  this  sum  was  arrived  at  by  taking 
the  whole  number  of  freight  cars  in  the  United  States,  mul- 
tiplying that  number  by  the  365  the  number  of  days  in  a 
year  and  dividing  the  total  gross  receipts  from  the  trans- 
portation of  freight  by  the  product.  It  would  be  difficult 
to  conceive  of  anything  more  absurd  than  this  method  of 
arriving  at  the  fair  rental  value  of  a  freight  car.  The  car 
does  not  earn  $2.20  per  day.  The  railroads  of  the  United 
States  may  earn  that  amount  from  the  transportation  of 
freight,  we  have  not  verified  the  computation,  and  in  the 
handling  of  that  business  a  car  is  essential,  but  it  is  the  rail- 
road as  a  whole,  not  the  freight  car  alone  which  produces 
these  earnings.  Undoubtedly  there  are  times  when  a  rail- 
road could  afford  to  pay  $2.00  a  day,  and  more,  for  the  use 
of  a  car  but  that  is  due  to  some  special  exigency  and  the 
fact  that  this  is  the  average  sum  which  the  railroad  earns 
per  freight  car  in  service  has  no  tendency  to  show  the  fair 
rental  value  of  that  car. 

While  20  cents  a  day  may  not  be  a  fair  compensation 
for  the  use  of  a  freight  car,  even  while  standing  upon  the 
track  and  not  in  service,  we  agree  with  the  complainants 
that  the  fact  that  the  railroads  have  fixed  upon  that  as  the 
amount  to  be  paid  by  one  line  to  another  for  the  use  of  its 
cars  strongly  indicates  that  in  the  opinion  of  the  railroads 
themselves  this  is  a  fair  price.  Some  railroads  are  borrow- 
ers and  others  lenders  of  cars  under  the  system  of  exchange 
between  connecting  lines  which  is  in  vogue  and  it  is  hardly 
credible  that  the  lender  would  furnish  the  borrower  with 
equipment  for  much  less  than  a  fair  compensation.  There 
is  every  reason  for  fixing  upon  some  amount  which  is  a  rea- 
sonable return  for  the  use  of  the  car  so  that  neither  the  bor- 
rower nor  the  lender  may  suffer. 

Formerly  the  price  paid  for  the  use  of  foreign  cars  was 
7.5  mills  for  each  mile  the  car  actually  ran.  This  was 
thought  too  high  and  it  was  reduced  to  6  mills  per  mile,  at 
which  figure  it  remained  for  several  years.  Why,  if  rail- 
roads had  been  operating  upon  a  compensatory  basis  up  to 
three  years  ago  did  they  then  fix  upon  a  sum  which  was  not 
supposed  to  be  compensatory  ? 


139 

The  rates  paid  private  car  companies  for  the  use  of 
their  cars  lead  to  the  same  conclusion.  Many  freight  cars 
have  been  in  the  past  furnished  by  private  companies  which 
owned  the  cars  and  leased  them  to  the  railroads  upon  a 
mileage  basis.  For  a  long  time  the  mileage  allowed  for  the 
use  of  the  ordinary  freight  car  was  7.5  mills,  the  same  as 
that  paid  by  one  railroad  to  another,  and  when  the  allow- 
ance between  railways  was  reduced  to  6  mills  the  allowance 
to  private  cars  was  correspondingly  reduced.  Upon  this 
basis  of  charging  most  railway  companies  found  it  for  their 
advantage  to  provide  their  own  equipment  in  all  cases  where 
that  equipment  was  required  for  continuous  service.  There 
are,  however,  some  special  instances  in  which  the  use  of 
equipment  is  largely  periodical,  in  which  railway  companies 
have  continued  to  employ  the  cars  of  private  car  lines,  the 
two  most  conspicuous  examples  being  cattle  cars  and  re- 
frigerator cars.  The  Commission  has  recently  investigated 
the  use  of  these  private  cars.  The  cattle  car  costs  about  the 
same  to  build  as  the  ordinary  box  car ;  it  deteriorates  some- 
what more  rapidly  owing  to  the  fact  that  the  bedding  rots 
out  the  floors  and  the  bottom  of  the  posts.  There  are  several 
companies  which  furnish  cattle  cars  as  desired  for  6  mills 
per  mile,  and  the  testimony  shows  that  the  average  earnings 
of  these  cars  is  from  $7  to  $9  per  month.  Refrigerator  cars 
are  more  expensive  to  build  and  maintain  and  the  allowance 
made  for  their  use  is  generally  7.5  mills  per  mile.  It  is  our 
impression  that  the  business  of  providing  cattle  cars  at  6 
mills  per  mile  is  not  extremely  profitable  but  it  did  appear 
that  at  the  old  rate  of  7.5  mills  per  mile  it  was  remunerative 
and  that  car  companies  did,  out  of  their  wheelage  charges, 
pay  shippers  a  premium  for  using  their  cars. 

It  would  seem  that  6  mills  per  mile  produces  an  aver- 
age return  not  much  in  excess  of  20  cents  per  day ;  probably 
in  case  of  the  average  freight  car  not  at  all  in  excess  of  that 
sum ;  and  it  must  be  remembered  that  while  demurrage  is 
accruing  the  car  is  not  in  service  and  is  not,  therefore,  de- 
preciating as  rapidly  as  when  running.  If  therefore  the  ques- 
tion were  whether  one  dollar  per  day  was  a  reasonable  sum 
to  charge  the  shipper  for  the  use  of  a  freight  car  we  should 
hold  against  the  defendants.  But  that  is  not  the  question. 
A  railroad  company  is  a  common  carrier.  Its  duty  is  to 
transport  freight  to  destination  and  to  deliver  it  to  the  con- 


140 

signee.  It  is  the  duty  of  the  consignee  to  receive  his  freight 
within  a  reasonable  time  and  if  he  neglects  to  do  so  the  lia- 
bility of  the  railroad  company  as  a  common  carrier  ceases 
and  it  becomes  simply  a  warehouseman.  It  is  under  no 
legal  liability  to  continue  to  discharge  the  duty  of  a  ware- 
houseman but  may  insist  that  the  consignee  shall  receive 
and  remove  his  freight.  The  consequences  to  the  railway 
of  neglect  to  do  this  are  not  merely  in  case  of  carload 
freight  the  loss  of  the  use  of  a  car.  The  uncertainty  arising 
from  the  fact  that  cars  are  sometimes  unloaded  prompt- 
ly and  sometimes  not  is  embarrassing.  The  congestion  of 
its  terminals  is  often  and  perhaps  usually  a  more  serious 
matter  than  the  loss  of  its  cars.  It  would  be  not  only  much 
more  expensive  but  often  impossible  for  the  railways  of 
this  country  to  handle  their  traffic  at  many  points  unless 
they  required  the  prompt  removal  of  the  freight  from  the 
car.  To  permit  one  person  to  use  the  cars  of  a  railroad 
company  for  a  storehouse  and  to  deny  that  privilege  to  an- 
other creates  a  discrimination  between  shippers  which  is 
often  serious. 

For  these  reasons  and  others  it  is  not  only  proper  but 
highly  essential  that  railroad  companies  should  make  and 
enforce  uniformly  such  reasonable  demurrage  requirements 
as  will  insure  the  prompt  receipt  by  the  consignee  of  his 
freight.  The  demurrage  charge  which  is  imposed  for  that 
purpose  is  not,  however,  based  upon  the  fair  rental  value  of 
a  car ;  it  is  rather  in  the  nature  of  a  penalty.  While  it 
should  not  be  sufficient  in  amount  to  work  an  undue  hard- 
ship upon  the  shipper  who  must  occasionally  pay  it,  it 
should  be  sufficient  in  amount  to  accomplish  the  purpose  for 
which  it  is  intended.  One  dollar  per  day  is  the  demurrage 
charge  universally  named  by  car  service  associations  in  all 
parts  of  this  country  in  case  of  carload  freight,  and  the 
same  amount  is  generally,  if  not  uniformly  fixed  by  railroad 
commissions  invested  with  power  to  make  rates  and  regu- 
lations. Of  the  four  cases  before  us  the  demurrage  was 
collected  in  three  states  where  $1.00  per  day  had  been  es- 
tablished by  the  State  Commission,  as  the  charge  applicable 
to  state  shipments.  This  Commission  has  never  passed 
upon  the  reasonableness  of  the  $1.00  charge.  It  held  in 
Pennsylvania  Miller's  State  Association  vs.  Philadelphia  & 
Reading  Railroad  Company,  8  L  C.  C.  Rep.  $31,  that  48 


hours  was  a  reasonable  time  for  unloading  hay  after  the 
car  had  been  placed  and  notice  given  to  the  consignee.  In 
the  Blackman  Cases,  10  I.  C.  C.  Rep.  352,  it  was  held  that 
the  Southern  Railway  Company  might  apply  to  its  inter- 
state business  the'  same  storage  rates  prescribed  for  state 
business  by  the  Georgia  Commission  and  the  South  Caro- 
lina Commission  and  that  such  rates  were  reasonable  al- 
though much  higher  than  those  charged  by  warehouses  for 
the  same  service  of  storage.  We  could  not  hold  upon  the 
testimony  in  this  case  that  $1.00  per  day  is  an  unreasonable 
charge  and  while  a  more  general  investigation  might  alter 
that  opinion,  it  is  our  present  impression  that  it  is  just  and 
reasonable  for  the  purpose  intended. 

There  seems  to  be  a  certain  injustice  in  applying  this 
rule  to  the  shipments  of  the  complainants.  They  reside  at 
Terre  Haute,  Indiana,  and  these  demurrage  charges  were 
collected  at  points  many  miles  distant  from  there.  They 
accrued  in  all  cases  owing  to  the  fact  that  the  consignee  re- 
fused to  accept  the  hay.  Evidently  in  such  case  the  com- 
plainants might  reasonably  require  some  time  to  make  a 
new  disposition  of  the  hay  and  might  not  be  in  fault  in  not 
unloading  it  within  the  48  hours.  It  is  difficult  to  see,  how- 
ever, how  an  exception  can  be  made  in  their  favor  and  the 
embarrassment  and  pecuniary  loss  which  result  must  prob- 
ably be  regarded  as  an  incident  of  the  business. 

We  do  think  that  some  method  should  be  provided  by 
which  shippers  of  hay  like  the  complainants  will  be  prompt- 
ly notified  by  the  carrier  of  the  refusal  of  a  consignee  to  ac- 
cept and  unload  the  shipment.  It  appeared  that  at  the 
present  time  this  was  not  done  although  the  complainants 
had  actual  notice  in  all  the  above  cases  from  other  sources 
and  did  not,  therefore,  suffer  loss  on  that  account. 

The  complaints  will  be  dismissed. 


142 


DUTIES  OF  CONNECTING  CARRIERS. 

The  Supreme  Judicial  Court  of  Maine  (Fisher  vs.  Bos- 
ton &  Maine  Railroad  Company,  59  Atlantic  Rep.  532) 
holds  that  when  a  common  carrier  has  transported  goods 
over  its  own  lines  to  its  terminus  or  point  of  intersection 
with  a  designated  carrier  and  is  unable  to  deliver  them  to 
the  connecting  carrier  without  any  fault  upon  its  part,  its 
liability  as  a  common  carrier  ceases,  but  the  duty  still  rests 
upon  it  as  a  forwarder  to  exercise  reasonable  care  and  dili- 
gence to  prevent  unnecessary  loss  to  the  goods  and  save  the 
owner  needless  expenses  for  storage  and  transportation,  and 
to  notify  such  owner  of  the  facts. — Railway  World,  Feb.  17, 
1905. 


PRIVATE  SWITCHES. 

One  having  no  property  right  in  a  private  switch  over 
the  land  of  another  cannot  compel  the  latter  to  permit  a  rail- 
road company  to  receive  and  ship  his  freight  over  the  switch 
to  the  railroad's  own  track.  The  railroad  cannot  be  required 
to  receive  freight  on  or  along  a  private  switch ;  its  duty  to 
receive  freight  being  confined  and  limited  to  its  own  depots 
or  shipping  and  receiving  points. — Bedford-Bowling  Green 
Stone  Co.  vs.  Oman,  134  Fed.  Rep.  441. 


SUPPLEMENT  No.   2 


TO 


LEGAL  DECISIONS 


IN 


CAR  SERVICE  CASES 


PUBLISHED    BY   THE 


National  Association  of  Car  Service 

Managers. 

American    Associati 

Of 

Demurrage  Officers. 

1906 


SUPPLEMENT  No.   2 


TO 


LEGAL  DECISIONS 


JN 


CAR  SERVICE  CASES 


PUBLISHED    BY   THE 


National  Association  of  Car  Service  1 

~*\ti\ 


Managers. 

<* 


1906 


Pursuant  to  resolutions  of  the  National  Association  of 
Car  Service  Managers,  this  compilation  of  court  decisions  in 
car  service  or  demurrage  cases,  is  published  as  supplement 
number  two. 

This  pamphlet  includes  all  cases  reported  since  the 
publication  of  supplement  number  one  in  March  1906,  and 
is  called  for  at  this  time  by  several  members  of  the  Associa- 
tion, because  of  its  bearing  upon  what  are  called  reciprocal 

demurrage  laws. 

A.  G.  THOMASON, 

Secretary. 
Scranton,  Pa.,  September  29th,  1906. 


INDRX 


Supreme    Court  of   the   United    States  1 

April,   1906. 
The  H.  &  T.  C.  R.  R.  Co.  et.  al.,  vs.  John  A.  Mayes. 

Action  begun  in  District  Court,  Llano  County,  Texas, 
to  recover  penalty  against  railroad  for  failure  to 
furnish  stock  cars.— Judgment  given  in  favor  of 
plaintiff  by  District  Court,  and  affirmed  by  Texas 
Court  of  Civil  Appeals. —Application  to  Supreme 
Court  of  Texas  for  writ  of  error  refused. — Appeal  to 
United  States  Supreme  Court. —Railroad  challenged 
constitutionality  of  the  Texas  statute  applied  to 
interstate  commerce.  — Court  decides  that  the  Texas 
statute  transcends  the  legitimate  powers  of  the 
Legislature. —  Judgment  reversed  and  case  re- 
manded. 


Texas  Court  of    Civil    Appeals,   Third    District 

April,   1906. 
The  H.  &  T.  C.  R.  R.  Co.  vs.  Buchanan. 

Suit  first  brought  by  Buchanan  for  penalty  against 
H.  &  T.  C.  R.  R.  for  failure  to  furnish  seven 
stock  cars;  and  for  damages  against  H.  &  T.  C. 
R.  R.  and  A.  T.  &  Santa  Fe  Ry.  for  moving  ship- 
ment by  longest  route.  — District  Court  of  Llano 
County,  Texas,  gave  verdict  to  Buchanan  for  both 
penalty  and  damages.— R.  R.  Appealed.— Court  of 
Appeals  ruled  that  the  Texas  statute  did  not  penal- 
ize railroads  for  failure  to  furnish  cars  to  be  used 
beyond  the  line  of  the  originating  road. 


Supreme   Court  of   the    United    States 15 

May,   1906. 
Franklin  McNeill  et.  al.,  vs.  Southern  Ry. 

Consignee  refused  to  pay  demurrage  on  cars  loaded 
with  coal  and  wood,  placed  on  private  siding. — Rail- 
road refused  to  place  other  cars  on  private  siding, 


II 


but  offered  delivery  on  public  tracks.  —  Informal 
complaint  made  to  North  Carolina  Corporation 
Commission.— The  Commission  ordered  delivery  of 
cars  and  payment  of  freight  charges,  on  private 
siding  referred  to.— Exceptions  filed  by  railroad, 
and  overruled  by  Commission. — Railroad  appealed 
to  Circuit  Court.  —  Pending  decision  cars  stood 
on  distant  siding.  —  Railroad  filed  bill  in  Circuit 
Court  of  United  States  for  perpetual  injunction 
against  Consignee  and  Commission.— Court  held 
that  order  of  Commission  was  repugnant  to  the 
Commerce  clause  of  the  Constitution  and  grant- 
ed injunction.  —  Commission  and  Consignee  ap- 
pealed.—Railroad  cross  appealed.— More  than  the 
amount  of  demurrage  charged,  involved  in  the  case. 
—Circuit  Court  decision  affirmed. 


LEGAL  DECISIONS  AND  OPINIONS. 


SUPREME  COURT  OF  THE  UNITED  STATES. 
No.  198. — OCTOBER  TERM,  1905. 


U.  $.  Reports,  Vol.  201,  Page  321. 
ii  Texas  Ct.  Rep.  69,  372. 


APRIL  2,  1906. 

IN  ERROR  TO  THE  COURT. OF  CIVIL  APPEALS  IN  AND  FOR  THE: 

THIRD  SUPREME  JUDICIAL  DISTRICT  OF  THE 

STATE  OF  TEXAS. 


THE  HOUSTON  AND  TEXAS  CENTRAL  RAILROAD  COMPANY 
ET  ALV  PLAINTIFFS  IN  ERROR, 

vs. 
JOHN  A.  MAYES. 

This  was  an  action  begun  by  Mayes  in  the  District 
Court  of  Llano  County,  Texas,  against  the  Houston  and 
Texas  Central  Railroad  Company  to  recover  a  penalty  of 
$475,  by  reason  of  defendant's  failure  to  furnish  seventeen 
stock  cars,  applied  for  in  writing  by  the  plaintiff  under  the 
provisions  of  certain  statutes  of  Texas  hereinafter  referred 
to,  for  the  purpose  of  shipping  plaintiff's  cattle  from  Llano, 
Texas,  to  Red  Rock,  Oklahoma,  and  for  damages  occasioned 
by  defendant's  negligence. 

The  petitioner  alleged  that  the  defendant  company 
formed  with  two  other  railroad  companies  a  continuous  line 


from  Llano  to  Red  Rock,  and  were  engaged  as  common 
carriers  in  the  business  of  shipping  live  stock  and  other 
freight;  that  on  April  9,  1903,  plaintiff  being  the  owner  of 
six  hundred  and  twenty-five  head  of  cattle,  made  application 
in  writing  to  the  local  agent  of  the  road  for  seventeen  stock 
cars  to  be  delivered  on  April  20,  and  deposited  with  the 
agent  one-fourth  of  the  freight  on  the  same,  namely,  $268.82, 
promising  to  pay  the  remainder  on  demand,  and  that  he  af- 
terwards paid  the  same ;  that  upon  the  day  named,  April  20, 
he  had  cattle  sufficient  to  load  the  cars,  delivered  them 
to  the  defendant  at  its  stock  pens  at  Llano  for  shipment,  but 
the  defendant  failed  to  furnish  the  cars,  and  did  not  furnish 
the  same  until  the  afternoon  of  the  2ist  April,  1903. 

The  trial  resulted  in  a  judgment  in  favor  of  the  plain- 
tiff for  $425  penalty  for  delay,  and  $500  damages  to  the 
stock  while  in  the  pens  at  Llano.  This  judgment  was  af- 
firmed by  the  Court  of  Civil  Appeals,  and  an  application  for 
a  writ  of  error  to  the  Supreme  Court  of  the  State  was  over- 
ruled. 

MR.  JUSTICE  BROWN  delivered  the  opinion  of  the  Court. 

This  case  involves  the  constitutionality  of  certain 
articles  of  the  Revised  Statutes  of  Texas,  set  forth  in  the 
margin,*  the  material  requirement  of  which  is  that  when  the 

*"Art.  4497.  When  the  owner,  manager  or  shipper  of  any  freight 
of  any  kind  shall  make  application  in  writing  to  any  superintend- 
ent, agent  or  person  in  charge  of  transportation,  to  any  railway 
company,  receiver  or  trustee  operating  a  line  of  railway  at  the  point 
the  cars  are  desired  upon  which  to  ship  any  freight,  it  shall  be  the 
duty  of  such  railway  company,  receiver,  trustee  or  other  person  in 
charge  thereof  to  supply  the  number  of  cars  so  required,  at  the 
point  indicated  in  the  application,  within  a  reasonable  time  there- 
after, not  to  exceed  six  days  from  the  receipt  of  such  application, 
and  shall  supply  such  cars  to  the  persons  so  applying  therefor,  in 
the  order  in  which  such  applications  are  made,  without  giving 
preference  to  any  person;  provided,  if  the  application  be  for  ten 
cars  or  less,  the  same  shall  be  furnished  in  three  days;  and  pro- 
vided further,  that  if  the  application  be  for  fifty  cars  or  more,  the 
railway  company  may  have  ten  full  days  in  which  to  supply  the 
cars.  (As  amended  by  the  act  of  1899,  page  67.) 

"Art.  4498.  Said  application  shall  state  the  number  of  cars 
desired,  the  place  at  which  they  are  desired  and  the  time  they  are 
desired;  provided,  that  the  place  designated  shall  be  at  some  sta- 
tion or  switch  on  the  railroad. 

"Art.  4499.  When  cars  are  applied  for  under  the  provisions 
of  this  chapter,  if  they  are  not  furnished,  the  railway  company  so 


shipper  of  freight  shall  make  a  requisition  in  writing  for  a 
number  of  cars  to  be  furnished  at  any  point  indicated  within 
a  certain  number  of  days  from  the  receipt  of  the  application, 
and  shall  deposit  one-fourth  of  the  freight  with  the  agent 
of  the  company,  the  company  failing  to  furnish  them  shall 
forfeit  $25  per  day  for  each  car  failed  to  be  furnished,  the 
only  proviso  being  that  the  law  "shall  not  apply  in  cases  of 
strikes  or  other  public  calamity." 

The  defense  was  that  this  statute  was  not  applicable  to 
demands  made  for  cars  to  be  sent  out  of  the  State  and  to  be 
used  in  interstate  commerce ;  and  as  the  shipment  was  in- 
tended for  Oklahoma,  the  act  did  not  apply,  and  the  defend- 
ant was  not  liable.  The  question  is  whether  the  statute, 
applied  as  it  is  by  the  Texas  vcourt  to  interstate  shipments,  is 
an  infringement  upon  the  power  of  Congress  to  regulate 
interstate  commerce. 

That,  notwithstanding  the  exclusive  nature  of  this 
power,  the  States  may,  in  the  exercise  of  their  police  power, 

failing-  to  furnish  them  shall  forfeit  to  the  party  or  parties  so 
applying  for  them  the  sum  of  twenty-five  dollars  per  day  for  each 
car  failed  to  be  furnished,  to  be  recovered  in  any  court  of  com- 
petent jurisdiction,  and  all  actual  damages  such  applicant  may 
sustain. 

"Art.  4500.  Such  applicant  shall,  at  the  time  of  applying  for 
such  car  or  cars,  deposit  with  the  agent  of  such  company  one- 
fourth  of  the  amount  of  the  freight  charge  for  the  use  of  such  cars, 
unless  the  said  road  shall  agree  to  deliver  said  cars  without  such 
deposit.  And  such  applicant  shall,  within  forty-eight  hours  after 
such  car  or  cars  have  been  delivered  and  placed  as  hereinbefore 
provided,  fully  load  the  same,  and  upon  failure  to  do  so  he  shall 
forfeit  and  pay  to  the  company  the  sum  of  twenty-five  dollars  for 
each  car  not  used;  provided,  that  where  applications  are  made  on 
several  days,  all  of  which  are  filed  upon  the  same  day,  the 
applicant  shall  have  forty-eight  hours  to  load  the  car  or  cars 
furnished  on  the  first  application,  and  the  next  forty-eight  hours 
to  load  the  car  or  cars  furnished  on  the  next  application,  and  so 
on;  and  the  penalty  prescribed  shall  not  accrue  as  to  any  car  or 
lot  of  cars  applied  for  on  any  one  day  until  the  period  within  which 
they  may  be  loaded  has  expired.  And  if  the  said  applicant  shall 
not  use  such  cars  so  ordered  by  him,  and  shall  notify  the  said 
company  or  its  agent,  he  shall  forfeit  and  pay  to  said  railroad 
company,  in  addition  to  the  penalty  herein  prescribed,  the  actual 
damages  that  such  company  may  sustain  by  the  said  failure  of  the 
applicant  to  use  said  cars."  (As  amended  by  the  act  of  1899, 
page  67.) 

Art.  4502  contains  the  following  proviso:  "that  the  pro- 
visions of  this  law  shall  not  apply  in  cases  of  strikes  or  other 
public  calamity."  ;  7  ,\  ] 


make  reasonable  rules  with  regard  to  the  methods  of  carry- 
ing on  interstate  busines ;  the  precautions  that  shall  be  used 
to  avoid  danger,  the  facilities  for  the  comfort  of  passengers 
and  the  safety  of  freight  carried,  and,  to  a  certain  extent, 
the  stations  at  which  stoppages  shall  be  made,  is  settled  by 
repeated  decisions  of  this  Court.  Of  course,  such  rules  are 
inoperative  if  conflicting  with  regulations  upon  the  same 
subject  enacted  by  Congress,  and  can  be  supported  only 
when  consistent  with  the  general  requirement  that  interstate 
commerce  shall  be  free  and  unobstructed,  and  not  amount- 
ing to  a  regulation  of  such  commerce.  As  the  power  to 
build  and  operate  railways,  and  to  acquire  land  by  condem- 
nation, usually  rests  upon  State  authority,  the  Legislatures 
may  annex  such  conditions  as  they  please  with  regard  to 
intm-state  transportation,  and  such  other  rules  regarding 
interstate  commerce  as  are  not  inconsistent  with  the  general 
right  of  such  commerce  to  be  free  and  unobstructed. 

The  exact  limit  of  lawful  legislation  upon  this  subject 
cannot  in  the  nature  of  things  be  defined.  It  can  only  be 
illustrated  from  decided  cases,  by  applying  the  principles 
therein  enunciated,  determining  from  these  whether  in  the 
particular  case  the  rule  be  reasonable  or  otherwise. 

That  States  may  not  burden  instruments  of  interstate 
commerce,  whether  railways  or  telegraphs,  by  taxation,  by 
forbidding  the  introduction  into  the  State  of  articles  of  com- 
merce generally  recognized  as  lawful,  or  by  prohibiting  their 
sale  after  introduction,  has  been  so  frequently  settled  that  a 
citation  of  authorities  is  unnecessary.  Upon  the  other  hand, 
the  validity  of  local  laws  designed  to  protect  passengers  or 
employes,  or  persons  crossing  the  railroad  tracks,  as  well  as 
other  regulations  intended  for  the  public  good,  are  generally 
recognized.  An  analysis  of  all  the  prior  important  cases 
upon  this  point  will  be  found  in  the  opinion  of  the  Court  in 
Cleveland  etc.  R.  R.  Co.  vs.  Illinois,  (177  U.  S.  514,)  where- 
in a  requirement  that  express  trains  intended  only  for 
through  passengers  should  stop  at  every  county  seat,  when 
ample  accommodations  were  provided  by  local  trains,  was 
held  to  be  an  unreasonable  burden.  Other  similar  cases 
regulating  the  stoppage  of  trains  are  Illinois  Central  R.  R. 
Co.  vs.  Illinois,  (163  U.  S.  142);  Gladson  vs.  Minnesota, 
(166  U.  S.  427)  ;  Lake  Shore  etc.  R.  R.  Co.  vs.  Ohio,  (173 


U.  S.  285).     In  the  same  line  is  the  more  recent  case  of 
Wisconsin  etc.  R.  R.  Co.  vs.  Jacobson,  (179  U.  S.  287). 

While  there  is  much  to  be  said  in  favor  of  laws  com- 
pelling railroads  to  furnish  adequate  facilities  for  the  trans- 
portation of  both  freight  and  passengers,  and  to  regulate 
the  general  subject  of  speed,  length  and  frequency  of  stops., 
for  the  heating,  lighting  and  ventilation  of  passenger  cars, 
the  furnishing  of  food  and  water  to  cattle  and  other  live 
stock,  we  think  an  absolute  requirement  that  a  .railroad  shall 
furnish  a  certain  number  of  cars  at  a  specified  day,  regard- 
less of  every  other  consideration  except  strikes  and  other 
public  calamities,  transcends  the  police  power  of  the  State 
and  amounts  to  a  burden  \ipon  interstate  commerce.  It 
makes  no  exception  in  cases  of  a  sudden  congestion  of 
traffic,  an  actual  inability  to  furnish  cars  by  reason  of  their 
temporary  and  unavoidable  detention  in  other  States,  or  in 
other  places  within  the  same  State.  It  makes  no  allowance 
for  interference  of  traffic  occasioned  by  wrecks  or  other  ac- 
cidents upon  the  same  or  other  roads,  involving  a  detention 
of  traffic,  the  breaking  of  bridges,  accidental  fires,  washouts 
or  other  unavoidable  consequences  of  heavy  weather. 

A  dereliction  of  the  road  in  this  particular,  which  may 
have  occurred  from  circumstances  wholly  beyond  the  con- 
trol of  its  officers,  is  made  punishable  not  only  by  damages 
actually  incurred  by  the  shipper  in  the  detention  of  his  stock, 
but  in  addition  thereto  by  an  arbitrary  penalty  of  $25  per  car 
for  each  day  of  detention.  The  penalty  which  was  assessed 
in  this  case,  though  the  detention  was  only  for  one  day, 
amounted  to  nearly  as  much  as  the  damages,  and  might  in 
another  case  amount  to  far  more. 

While  perhaps  the  road  may  have  no  right  to  complain 
of  that  portion  of  the  statute  which  assumes  to  provide  for 
its  own  protection,  it  is  illustrative  of  its  general  spirit  that, 
if  the  shipper  does  not  fully  load  his  cars  within  forty-eight 
hours  after  their  arrival,  he  shall  forfeit  $25  for  each  car, 
or  if  the  consignee  shall  fail  to  unload  them  within  forty- 
eight  hours  after  their  delivery,  at  the  place  of  consignment, 
which  in  the  case  of  interstate  shipments  would  be  in  another 
State,  he  shall  also  forfeit  $25  per  day  for  each  car  un- 
loaded. 


In  this  connection  the  recent  case  of  Central  etc.  R.  R. 
Co.  vs.  Murphey  (196  U.  S.  194,)  is  instructive.  In  that 
case  we  held  that  the  imposition  by  a  State  statute,  upon  the 
initial  or  any  connecting  carrier,  of  the  duty  of  tracing  the 
freight  and  informing  the  shipper,  in  writing,  when,  where 
or  how,  and  by  which  carrier  the  freight  was  lost,  damaged 
or  destroyed,  and  of  giving  the  names  of  the  parties  and 
their  official  position,  if  any,  by  whom  the  truth  of  the  facts 
set  out  in  the  information  could  be  established,  is,  when  ap- 
plied to  interstate  commerce,  a  violation  of  the  commerce 
clause  of  the  Federal  Constitution ;  and  an  act  of  the  Legis- 
lature of  Georgia  imposing  such  a  duty  on  common  carriers 
was  held  void  as  to  shipments  made  from  points  in  Georgia 
to  other  States. 

Although  the  statute  in  question  may  have  been  dic- 
tated by  a  due  regard  for  the  public  interest  of  the  cattle 
raisers  of  the  State,  and  may  have  been  intended  merely  to 
secure  promptness  on  the  part  of  the  railroad  companies,  in 
providing  facilities  for  speedy  transportation,  we  think  that 
in  its  practical  operation  it  is  likely  to  work  a  great  injus- 
tice to  the  roads,  and  to  impose  heavy  penalties  for  trivial, 
unintentional  and  accidental  violations  of  its  provisions, 
when  no  damages  could  actually  have  resulted  to  the  ship- 
pers. 

It  should  be  borne  in  mind  that  the  act  does  not  apply 
to  cattle  alone,  but  to  all  cases  "when  the  owner,  manager  or 
shipper  of  any  freight  of  any  kind  shall  make  application  in 
writing,"  etc.  The  duty  of  the  railroad  company  to  furnish 
the  cars  within  the  time  limited  is  peremptory  and  admits  of 
no  excuses,  except  such  as  arise  from  strikes  and  other  pub- 
lic calamities.  If,  for  instance,  the  owner  of  a  large  quan- 
tity of  cotton  should  make  a  requisition  under  the  act  for  a 
number  of  cars,  the  railway  company  would  be  bound  to 
furnish  them  upon  the  day  named,  or  incur  a  penalty  of  $25 
for  each  car,  though  the  detention  of  the  cotton  involved  no 
expense  to  the  owner,  or  may  even  have  resulted  in  a  benefit 
to  him  through  a  rise  in  the  market. 

While  railroad  companies  may  be  bound  to  furnish  suf- 
ficient cars  for  their  usual  and  ordinary  traffic,  cases  will  in- 
evitably arise  where  by  reason  of  an  unexpected  turn  in  the 


market,  a  great  public  gathering,  or  an  unforseen  rush  of 
travel,  a  pressure  upon  the  road  for  transportation  facilities 
may  arise,  which  good  management  and  a  desire  to  fulfil  all 
its  legal  requirements  cannot  provide  for,  and  against  which 
the  statute  in  question  makes  no  allowance. 

Although  it  may  be  admitted  that  the  statute  is  not  far 
from  the  line  of  proper  police  regulation,  we  think  that  suf- 
ficient allowance  is  not  made  for  the  practical  difficulties  in 
the  administration  of  the  law,  and  that,  as  applied  to  inter- 
state commerce,  it  transcends  the  legitimate  powers  of  the 
Legislature. 

The  judgment  of  the  Court  of  Civil  Appeals  is,  there- 
fore, reversed,  and  the  cause  remanded  to  that  Court  for 
further  proceedings. 

Mr.  Justice  White,  not  having  heard  the  argument,  took 
no  part  in  the  decision  of  this  case. 

The  Chief  Justice,  Mr.  Justice  Harlan  and  Mr.  Justice 
McKenna  dissented. 


TEXAS  COURT  OF  CIVIL  APPEALS,  THIRD 
DISTRICT. 

APRIL  1 8,  1906. 


Texas  Ct.  Rep.  Vol. 


THROUGH  SHIPMENT — FAILURE  TO  FURNISH  CARS  ON  DE- 
MAND— PENALTY — LIABILITY  OF  INITIAL  CARRIER — 
STATUTE— DEMAND  FOR  CARS — ROUTING — 
DELAY. 

HOUSTON  &  TEXAS  CENTRAL  RAILWAY  COMPANY 

vs. 
BUCHANAN. 


1.  The  statute   (Rev.  Stats.,  Art.  4497  to  4500)   de- 
nouncing a  penalty  against  railway  companies   for  failure 
to  furnish  cars  on  written  demand  of  the  shipper  within  a 
reasonable  time  is  penal  in  character  and  must  be  strictly 
construed. 

2.  The  statute  does  not  in  express  terms  require  the 
initial  carrier  to  furnish  cars  to  be  used  by  the  connecting 
carrier  in  the  transportation  of  commodities  to  point  of  des- 
tination beyond  the  line  of  the  former,  and  it  will  not  be  ex- 
tended, by  implication,  so  as  to  impose  such  a  burden  or  duty. 

3.  Where  the  demand  was  for  cars  to  be  furnished  at 
Llano,  Texas,  "for  the  purpose  of  making  a  shipment  of 
cattle  from  Llano,  Texas,  to  Fairfax,  O.  T.,"  this  was  an 
express  request  for  cars  to  be  furnished  and  to  be  used  in  the 
transportation  of  the  cattle  from  Llano  to  Fairfax,  Okla- 
homa Territory,  and  Llano  being  a  station  on  the  line  of  the 
initial  carrier  which  did  not  extend  to  Fairfax,  the  failure 
of  such  carrier  to  furnish  the  cars  within  a  reasonable  time 


did  not  subject  it  to  the  penalty  denounced  by  the  statute,  in 
the  absence  of  proof  of  any  partnership  or  traffic  arrange- 
ment between  it  and  the  connecting  carrier. 

4.  Where  at  the  time  the  contract  for  a  through  ship- 
ment was  made  the  shipper  demanded  a  routing  which 
would  give  connection  with  the  second  carrier's  line  at  L. 
and  the  only  way  under  the  arrangement  between  the  two 
carriers  the  shipment  could  only  be  billed  through  by  way 
of  B.,  and  the  shipper  was  so  informed,  and  the  shipment 
was  so  billed  and  routed,  the  carrier  could  not  be  held  liable 
for  damages  for  delay  caused  by  the  longer  route  through 
B.  In  such  case  the  shipper  could  not  exact  a  through  bill- 
ing which  the  carrier  was  not  prepared  to  give. 


Appeal  from  the  District  Court  of  Llano  County ;  Clar- 
ence Martin  Judge. 

S.  R.  Fisher,  J.  H.  Tallichet,  Baker,  Botts,  Parker  & 
Garwood,  for  appellant ;  McLean  &  Spears,  for  appellee. 

Action  by  S.  H.  Buchanan  against  the  H.  &  T.  C.  Ry. 
Co.  and  another.  From  a  judgment  for  plaintiff,  defendants 
appeal.  Reversed. 

FISHER,  Chief  Justice. 

This  was  a  suit  by  S.  H.  Buchanan  against  the  Houston 
&  Texas  Central  Railroad  Company  and  the  Gulf,  Colorado  & 
Santa  Fe  Railway  Company  to  recover  of  the  first  defendant 
$175  as  a  penalty  for  the  alleged  failure  of  said  defendant, 
for  one  day,  to  furnish  seven  stock  cars  demanded  by  plain- 
tiff, and  to  recover  of  both  defendants  $1500  damages  al- 
leged to  have  been  sustained  by  a  shipment  of  300  head  of 
stock  cattle  made  by  plaintiff,  April  15,  1903,  over  the  lines 
of  railroad  of  defendants,  and  the  Atchison,  Topeka  & 
Santa  Fe  Railway  Company,  from  Llano,  Texas,  to  Fair- 
fax, Oklahoma.  Trial,  May  3,  1905,  resulted  in  a  verdict 
and  judgment  for  plaintiff  against  the  Houston  &  Texas 
Central  Railroad  Company  for  $175  by  way  of  penalty,  and 
for  $561.25  damages  and  interest;  and  against  the  Guif, 
Colorado  &  Santa  Fe  Railway  Company  for  $337.25  dam- 
ages and  interest. 


There  are  assignments  of  error  which  object  to  so  much 
of  the  judgment  as  is  against  the  Houston  &  Texas  Central 
Railroad  Company  for  the  amount  of  penalties  recovered 
for  the  failure  to  furnish  cars  in  which  to  ship  the  cattle 
within  the  time  requested.  The  cattle  in  question  were  to 
be  transported  from  Llano,  Texas,  to  Fairfax,  in  the  Terri- 
tory of  Oklahoma.  One  of  the  objections  is  that  the  statute 
under  which  the  demand  for  cars  was  made  does  not  relate 
to  an  interstate  shipment.  Another  objection  is  to  the  effect 
that  the  demand  was  for  cars  to  be  used  in  transporting  the 
cattle  over  the  entire  route,  much  of  which  was  beyond  the 
line  of  the  Houston  &  Texas  Central  Railroad  Company,  and 
was  over  the  lines  of  connecting  carriers.  Other  objections 
were  urged  to  the  law  upon  which  the  demand  for  cars  was 
predicated,  but  the  two  mentioned  will  only  be  noticed  by  us 
in  disposing  of  so  much  of  the  judgment  as  relates  to  penal- 
ties. We  have  been  informed  through  publication  in  some 
of  the  daily  newspapers  of  the  State  that  the  Supreme  Court 
of  the  United  States  in  the  case  of  H.  &  T.  C.  R.  R.  Co.  vs. 
Mayes,  n  Texas  Court  Reporter,  69,  372,  on  writ  of  error 
from  this  court,  has  held  the  law  in  question  to  be  uncon- 
stitutional, as  being  opposed  to  the  interstate  commerce 
clause  of  the  Constitution.  We  have  not  read  the  opinion 
of  that  court,  nor  have  we  received  any  official  information 
as  to  the  full  nature  and  effect  of  the  decision  in  the  case 
mentioned.  However,  while  we  have  no  reason  to  doubt  the 
correctness  of  the  published  report,  we  have  reached  the 
conclusion  that  the  statute,  if  it  could  be  held  valid,  does  not 
apply  to  the  demand  for  cars  in  this  instance.  The  written 
demand  is  as  follows :  "Llano,  Texas,  April  8,  1903.  Mr. 
E.  W.  Tarrence,  Agent  H.  &  T.  C.  Railroad  Company, 
Llano,  Texas.  Dear  Sir :  For  the  purpose  of  making  a  ship- 
ment of  cattle  from  Llano,  Texas,  to  Fairfax,  O.  T.,  I  de- 
sire seven  stock  cars  at  Llano,  Texas,  on  the  I4th  day  of 
April,  A.  D.  1903.  I  herewith  tender  you  one-fourth  of  the 
amount  of  freight  charges  for  the  use  of  such  cars.  Very 
truly  yours,  (Signed)  S.  H.  Buchanan."  The  evidence 
shows  that  Llano  is  a  station  upon  the  Houston  &  Texas 
Central  Railroad,  and  it  is  a  fact  known  that  it  does  not 
operate  a  road  leading  to  Fairfax,  Oklahoma  Territory.  The 
cars  were  used  and  intended  to  be  used  over  the  Houston  & 
Texas  Central  Railroad,  and  from  it  transferred  to  its  con- 


II 

necting  line,  the  Gulf,  Colorado  &  Santa  Fe  Railway,  which 
would  carry  the  cars  and  the  cattle  to  the  point  of  destina- 
tion. The  cars  were  not  delivered  on  the  day  requested, 
which  fact  was  the  basis  of  the  judgment  for  penalties 
against  the  Houston  &  Texas  Central  Railroad  Co. 

We  have  given  this  written  demand  much  consider- 
ation, in  order  to  determine  what  construction  should  be 
given  to  it,  and  we  have  concluded  to  hold  that  it  is  an  ex- 
press request  for  cars  to  be  furnished  and  to  be  used  in  the 
transportation  of  the  cattle  from  Llano  to  Fairfax.  The 
railroad  has  interposed  the  defense  that  under  the  statute 
upon  which  this  demand  is  predicated,  they  were  not  re- 
quired to  furnish  cars  to  be  used  by  a  connecting  carrier  to 
transport  the  shipment  to  its  destination.  In  other  words, 
that  the  Houston  &  Texas  Central  Railroad  Co.  was  nut 
required  to  heed  the  request  for  cars  to  be  used  beyond  its 
own  line.  There  is  no  evidence  of  any  partnership  agree- 
ment or  traffic  arrangements  between  the  two  roads  with 
reference  to  the  use  of  cars  owned  by  either  road.  We  find 
nothing  expressly  stated  in  the  statute  in  question  which 
requires  the  initial  carrier  to  furnish  cars  to  be  used  by  con- 
necting lines  in  the  transportation  of  commodities  to  the 
point  of  destination  the  statute,  being  penal  in  character,  Will 
receive  a  strict  construction,  and  we  will  not,  by  implication, 
read  into  it,  words  that  will  impose  such  a  burden  or  duty 
upon  the  carrier  furnishing  the  cars ;  and  if  the  law  could 
be  held  to  require  this  to  be  done  without  the  consent  of  the 
carrier,  we  would  have  serious  doubt  as  to  its  validity.  The 
railway  company  is  the  owner  of  its  cars  and  is  entitled  to 
their  exclusive  use,  as  much  so  as  any  other  property  it  may 
possess ;  and  if  it  could  be  forced  against  its  consent  to  fur- 
nish and  surrender  its  cars  to  a  connecting  carrier  to  be  used 
by  it,  for  the  same  reason  it  could  be  compelled  to  furnish 
the  connecting  line  with  locomotives  and  train  crews,  and 
anything  else  that  might  be  necessary  or  needful  to  be  used  by 
the  latter  carrier  in  the  operation  of  its  public  business. 
Therefore  we  hold  that,  under  the  demand  in  question,  the 
penalties  could  not  be  recovered. 

Appellant's  eighth  assignment  of  error  is  well  taken. 
It  complains  of  the  action  of  the  trial  court  in  refusing 
appellants'  special  instruction  No.  3.  This  charge  has  been 


12 


compared  with  that  approved  in  H.  &  T.  C.  R.  R.  Co.  zv. 
Everett,  13  Texas  Court  Reporter,  930,  and,  other  than  a 
slight  change  in  verbiage,  we  find  no  difference  between  the 
two  instructions.  It  appears  from  the  evidence  of  the  wit- 
ness Buchanan,  that  a  demand  was  made  on  the  agent  at 
Llano  to  bill  the  cattle  through  by  way  of  Lampasas;  or,  if 
that  could  not  be  done,  then  by  way  of  McNeill.  The  cattle 
were  billed  and  shipped  from  Llano  by  way  of  Brenham,  a 
route  150  or  200  miles  longer  than  by  way  of  Lampasas  or 
McNeill.  At  Brenham,  they  were  delivered  to  the  Gulf, 
Colorado  &  Santa  Fe  Railway,  the  connecting  line  of  the 
Houston  &  Texas  Central.  The  appellee  in  his  direct  testi- 
mony, testified :  "We  were  first  informed  that  they  would 
not  take  us  by  way  of  Lampasas  when  we  were  ready  to 
start,  after  we  had  loaded  our  stock,  they  told  us  then  for 
certain  that  we  wouldn't  get  to  go  that  way.  After  we  were 
loaded  and  ready  to  start,  I  signed  up  one  written  contract." 
The  contract  mentioned,  provided  for  transportation  over 
the  first  line  of  road  to  Brenham,  and  he  says  that  there  was 
no  further  discussion  of  the  terms  of  shipment  "after  we 
loaded,  and  prior  to  the  time  I  signed  this  written  contract. 
I  agreed  to  go  by  McNeill  or  Lampasas.  They  wouldn't 
take  us  either  way."  The  evidence  shows  that  there  was  a 
through  connecting  system  of  roads  from  Llano  to  Fairfax, 
by  way  of  Lampasas  or  by  McNeill,  and  that  if  the  cattle 
had  been  transported  by  way  of  Lampasas  they  would  have 
reached  the  Gulf,  Colorado  and  Santa  Fe  road  at  that  point, 
and  which  would  have  given  a  continuous  route  to  the  point 
of  destination. 

On  cross-examination,  the  plaintiff  testified :  "At  the 
time  I  handed  in  my  order,  I  think  I  specified  a  particular 
route.  I  did  not  specify  any  particular  route  in  that  written 
demand.  At  the  time  I  was  there  he  asked  me  which  way 
I  wanted  to  go,  and  I  told  him  by  Lampasas.  He 
told  me  I  could  ship  to  Lampasas  by  the  local  rate 
and  local  billing.  My  demand  was  that  he  ship  them  by  way 
of  Lampasas  under  through  billing,  all  the  way  through  in 
the  same  cars  to  destination.  I  wanted  them  billed  through 
from  Llano  to  Fairfax  by  way  of  Lampasas,  go  through 
under  through  billing  in  the  same  cars.  Then  he  told  me  he 
could  not  do  that,  he  would  bill  me  local  to  Lampasas  at  the 
local  rate,  and  then  me  make  my  own  arrangements  with  the 


13 

Santa  Fe  at  Lampasas.  I  didn't  want  that.  I  then  de- 
manded that  he  do  the  same  thing,  through  billing  and 
through  cars  by  way  of  McNeill  and  Milano  Junction.  He 
refused  that,  but  said  he  could  do  it  by  the  local  rate  to  Me- 
Neill,  and  then  me  make  my  arrangements  with  the  I.  &  G. 
N.  and  Santa  Fe.  Both  of  those  I  refused,  the  local  part  of 
it,  and  demanded  that  I  go  through  under  through  billing 
from  Llano  to  Fairfax  at  $63.25  a  car — which  was  what  he 
told  us  the  rate  was.  I  wasn't  willing  to  pay  more  than 
$63.25  a  car  for  the  freight  to  that  point,  because  he  told  me 
that  was  the  rate,  and  I  wasn't  willing  to  have  the  local 
billing  or  local  rates.  He  told  me  the  Brenham  route  was 
the  shortest  route  he  could  give  you  through  billing  and 
through  rates  by.  He  sajd  the  routes  by  Brenham  or 
Hempstead  still  further,  and  he  gave  the  shortest  route  he 
said  he  could  give  under  that  billing."  There  is  evidence 
that  shows  that  at  the  time  this  shipment  was  made  there 
was  no  arrangement  between  the  two  roads  as  to  a  through 
billing  other  than  by  the  way  of  Brenham,  and  if  this  fact 
is  true,  the  demand  of  the  plaintiff  in  the  evidence  last 
quoted,  will  settle  the  case  against  him  as  to  the  claim  for 
damages  growing  out  of  the  longer  haul  on  account  of  rout- 
ing by  Brenham.  And  if  the  evidence  was  conclusive  upon 
the  question  that  this  was  the  only  route  under  a  through 
billing  that  could  be  given,  we  would  render  the  judgment 
in  appellant's  favor  on  this  branch  of  the  case ;  but,  however, 
there  may  be  some  question  as  to  whether  or  not  the  agent 
at  Llano  was  correct  in  the  statement  that  he  made  to  the 
plaintiff  that  he  could  not  bill  through  by  way  of  Lampasas 
or  McNeill  and  Milano.  If  the  plaintiff  requested  a  through 
billing  and  transportation  by  either  of  these  shorter  routes, 
and  it  was  wrongfully  denied  him  by  the  Houston  &  Texas 
Central  Railroad  Company,  when  it,  under  its  traffic  arrange- 
ments with  the  other  roads,  had  the  power  or  authority  to 
grant  it,  the  H.  &  T.  C.  could  be  held  liable  for  any  dam- 
ages that  might  have  resulted  by  reason  of  the  longer  haul 
and  routing  by  Brenham,  unless  that  road  would  be  protect- 
ed by  the  written  contract  signed  and  executed  by  the  plain- 
tiff under  which  the  cattle  were  transported.  If  the  plaintiff 
voluntarily  and  under  circumstances  that  would  make  the 
written  contract  binding  upon  him,  agreed  to  ship  by  Brenham, 
or  waived  the  right  previously  demanded  for  transportation  by 


14 

Lampasas  or  McNeill,  then  he  is  in  no  condition  to  com- 
plain. But  if  he  was  deceived  and  led  into  the  execution  of 
this  contract  by  reason  of  false  information  given  him  by 
the  agent  of  inability  to  through  route  by  Lampasas  or  .Mc- 
Neill ;  or  if  the  contract  was  executed  under  such  circum- 
stances as  to  bring  its  validity  into  question  under  the  rule 
announced  in  Railway  Co.  vs.  Carter,  29  $.  W.  Rep.,  565, 
then  plaintiff  would  be  entitled  to  recover,  provided  the  cat- 
tle sustained  any  injury  by  reason  of  being  transported  by 
the  longer  route. 

The  eleventh  paragraph  of  the  charge  of  the  trial  court, 
which  is  complained  of  in  the  ninth  and  tenth  assignments  of 
error,  abstractly  presents  a  correct  proposition  of  law;  but, 
however,  the  principle  there  announced  should,  upon  another 
trial,  be  so  presented  as  to  be  in  accord  with  the  views  ex- 
pressed in  this  opinion.  As  before  said,  the  plaintiff  admits 
that  he  was  informed  before  the  cattle  were  loaded  that  there 
could  be  no  through  billing  from  Llano  to  Fairfax  other  than 
by  Brenham;  and  if  this  was  true,  the  plaintiff  could  not 
select  a  different  route  and  exact  a  through  billing  when  the 
carrier  was  not  prepared  to  give  it,  and  he  had  been  informed 
of  this  fact.  The  charge  given  and  complained  of  omits 
this  phase  of  the  case. 

We  overrule  the  twelfth  and  thirteenth  assignments  of 
error.  We  have  had  some  difficulty  in  reaching  a  conclu- 
sion upon  the  question  raised  in  the  fourteenth  assignment 
of  error,  but  have  finally  concluded  that  the  action  of  the 
court  in  sustaining  the  special  exception  was  not  erroneous. 
No  error  is  pointed  out  in  the  fifteenth  and  sixteenth  assign- 
ments For  the  errors  discussed,  the  judgment  is  reversed 
and  the  cause  remanded. 


SUPREME  COURT  OF  THE  UNITED  STATES. 
Nos.  370  AND  594. — OCTOBER  TERM,  1905. 


U.  S.  Reports.   Vol.  201,  Page  —. 


MAY  28,   1906. 


APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED  STATES 
FOR  THE  EASTERN  DISTRICT  OF  NORTH  CAROLINA. 


370 

FRANKLIN  McNEiLL,  SAMUEL  L.  ROGERS,  EUGENE  C.  BED- 

DINGFIELD,  AND  THE  GREENSBORO  ICE  AND  COAL 

COMPANY,  APPELLANTS, 


SOUTHERN  RAILWAY  COMPANY. 

CROSS  APPEAL  FROM  THE  CIRCUIT  COURT  OF  THE  UNITED 

STATES  FOR  THE  EASTERN  DISTRICT  OF 

NORTH  CAROLINA. 

594 
SOUTHERN  RAILWAY  COMPANY,  APPELLANT, 

vs. 
FRANKLIN  McNEiLL,  SAMUEL  L.  ROGERS,  EUGENE  C.  BED- 

DINGFIELD,    AND   THE    GREENSBORO    ICE   AND    COAL 

COMPANY. 

The  Southern  Railway  Company,  a  corporation  organ- 
ized under  the  laws  of  the  State  of  Virginia,  operates  among 
others  a  line  of  railway  passing  through  Greensboro,  North 
Carolina.  At  that  place  the  Greensboro  Ice  and  Coal  Com- 
pany, during  the  times  hereafter  mentioned,  had  a  coal  and 


i6 

wood  yard,  located  some  distance  from  the  main  track  and 
right  of  way  of  the  railroad.  From  this  main  track,  however, 
there  was  a  private  siding  or  spur  track  extending  across 
the  land  of  private  persons  to  the  establishment  of  the  ice 
and  coal  company.  In  consequence  of  the  views  expressed 
in  the  opinion  it  is  unnecessary  to  review  the  facts  as  to  the 
construction  of  this  spur  track  or  to  detail  the  course  of 
dealing  between  the  parties  concerning  it  prior  to  the  origin 
of  this  controversy.  Certain  it  is  that  at  one  time  the  rail- 
road delivered  cars  consigned  to  the  ice  and  coal  company 
from  its  main  track  on  to  the  spur  track  in  question.  A 
dispute  arose  between  the  railway  company  and  the  ice  and 
coal  company  concerning  demurrage  on  thirteen  cars  con- 
taining coal  and  wood  consigned  to  the  latter  company.  In 
consequence  of  the  refusal  of  the  ice  and  coal  company  to 
pay  these  charges  the  railway,  on  October  12,  1903,  notified 
the  ice  and  coal  company  that  after  October  17,  1903,  it 
would  only  deliver  cars  consigned  to  the  ice  and  coal  com- 
pany on  the  public  tracks  of  the  railway  company  at  a  place 
known  as  the  team  track,  set  aside  for  the  delivery  to  the 
public  generally  of  merchandise  of  that  character.  After 
receiving  this  notice  the  ice  and  coal  company  ordered  four 
cars  of  coal  from  points  in  the  States  of  Pennsylvania,  West 
Virginia  and  Tennessee.  These  cars  reached  Greensboro 
between  October  18,  1903,  and  October  22,  1903,  were 
placed  upon  the  team  track,  and  delivery  was  tendered  to 
the  ice  and  coal  company.  That  company,  however,  de- 
clined to  receive  or  unload  the  cars  elsewhere  than  on  the 
siding  above  referred  to.  An  informal  complaint  on  the  sub- 
ject was  made  by  letter  on  October  20,  1903,  to  the  North 
Carolina  Corporation  Commission,  composed  of  the  appel- 
lants Franklin  McNeill,  Samuel  L.  Rogers  and  Eugene  C. 
Beddingfield.  After  conversations  had  with  officers  of  the 
railway  company,  the  commission,  on  October  31,  1903,  made 
an  order  requiring  the  railway  company,  upon  payment  of 
freight  charges,  to  make  delivery  of  the  cars  beyond  its 
right  of  way  and  on  the  siding  referred  to.  Hearing  was  had 
on  exceptions  filed  on  behalf  of  the  railway  company,  and 
on  December  10,  1903,  the  commission  made  an  order  over- 
ruling the  exceptions.  The  railway  company  appealed  to 
the  Circuit  Court  of  Guilford  County. 

In  the  meantime,  on  November  2,  1905,  after  demurrage 
or  car  service  charges  had  attached  in  respect  to  the  four, 


17 

cars  of  coal,  and  to  prevent  unnecessary  interference  with 
its  other  business,  the  railway  company  removed  the  cars  in 
question  from  the  team  track  and  placed  them  on  a  distant 
siding. 

By  chapter  164  of  the  Public  Laws  of  North  Carolina 
for  1899,  creating  the  corporation  commission,  and  by  the 
acts  amendatory  thereof,  as  contained  in  chapter  20,  revisal 
of  1905,  as  amended  in  1905,  it  was  provided  as  follows: 

"1086.  For  violating  rules. — If  any  railroad  company 
doing  business  in  this  State  by  its  agents  or  employes  shall 
be  guilty  of  a  violation  of  the  rules  and  regulations  provided 
and  prescribed  by  the  commission,  and  if  after  due  notice  of 
such  violation  given  to  the  principal  officers  thereof,  if  resid- 
ing in  the  State,  or,  if  not,  to  the  manager  or  superintendent 
or  secretary  or  treasurer  if  residing  in  the  State,  or  if  not, 
then  to  any  local  agent  thereof,  ample  and  full  recompense 
for  the  wrong  or  injury  done  thereby  to  any  person  or  cor- 
poration as  may  be  directed  by  the  commission,  shall  not  be 
made  within  thirty  days  from  the  time  of  such  notice,  such 
company  shall  incur  a  penalty  for  each  offense  of  five  hun- 
dred dollars.  (1899,  c.  164,  s.  15.) 

"1087.  Refusing  to  obey  orders  of  commission. — Any 
railroad  or  other  corporation  which  violates  any  of  the  pro- 
visions of  this  chapter  or  refuses  to  conform  to  or  obey  any 
rule,  order  or  regulation  of  the  corporation  commission 
shall,  in  addition  to  the  other  penalties  prescribed  in  this 
chapter,  forfeit  and  pay  the  sum  of  five  hundred  dollars  for 
each  offense,  to  be  recovered  in  an  action  to  be  instituted  in 
the  Superior  Court  of  Wake  County,  in  the  name  of  the 
State  of  North  Carolina  on  the  relation  of  the  corporation 
commission;  and  each  day  such  company  continues  to  vio- 
late any  provision  of  this  chapter,  or  continues  to  refuse  to 
obey  or  perform  any  rule,  order  or  regulation  prescribed  by 
the  corporation  commission  shall  be  a  separate  offense. 
(1899,  c.  164,5.  23.) 


"1091.  Violation  of  rules,  causing  injury;  damages; 
limitation. — If  any  railroad  company  doing  business  in  this 
State  shall,  in  violation  of  any  rule  or  regulation  provided  by 


i8 

the  commission,  inflict  any  wrong  or  injury  on  any  person, 
such  person  shall  have  a  right  of  action  and  recovery  for 
such  wrong  or  injury  in  any  court  having  jurisdiction  there- 
of, and  the  damages  to  be  recovered  shall  be  the  same  as  in 
an  action  between  individuals,  except  that  in  case  of  willful 
violation  of  law  such  railroad  company  shall  be  liable  to  ex- 
emplary damages :  Provided,  that  all  suits  under  this  chap- 
ter shall  be  brought  within  one  year  after  the  commission 
of  the  alleged  wrong  or  injury.  (1899,  c.  164,  s.  16.)" 

On  January  5,  1904,  the  bill  in  this  case  was  filed  in  the 
Circuit  Court  of  the  United  States  for  the  Eastern  District 
of  North  Carolina  to  perpetually  enjoin  the  bringing  of  ac- 
tions by  the  ice  and  coal  company  and  by  the  commission  to 
recover  penalties  or  damages  under  the  authority  of  the 
aforesaid  statutory  provisions,  because  of  the  noncompliance 
of  the  railway  company  with  the  order  of  the  commission. 
As  grounds  for  the  relief  prayed  it  was  averred  that  the  rail- 
way company  had  a  common  defense  based  upon  the  com- 
merce clause  of  the  Constitution  of  the  United  States,  the 
provisions  of  the  act  of  Congress  to  regulate  commerce  and 
the  due  process  clause  of  the  Constitution,  and  also  because 
the  corporation  commission  was  an  illegal  body,  as  it  was 
empowered  to  exercise  judicial,  executive  and  legislative 
functions  contrary  to  the  Constitutions  of  the  State  and  of 
the  United  States.  After  the  filing  of  answers  the  cause  was 
referred  to  a  master  to  report  the  testimony  and  findings  of 
fact  to  the  court.  The  court,  concluding  that  the  order  of 
the  corporation  commission  was  repugnant  to  the  commerce 
clause  of  the  Constitution,  entered  a  decree  in  favor  of  the 
railway  company  and  perpetually  enjoined  the  enforcement 
of  the  order  of  the  corporation  commission  and  the  bringing 
of  actions  to  recover  penalties  or  damages  for  a  violation  of 
that  order.  (134  Fed.  Rep.  82.)  The  corporation  commis- 
sion and  the  ice  and  coal  company  appealed  and  the  railway 
company  prosecuted  a  cross  appeal  upon  the  ground  that 
the  court  below  erred  in  not  deciding  that  the  corporation 
commission  was  an  unconstitutional  body  because  of  the 
alleged  mixed  and  peculiar  character  of  the  functions  con- 
ferred upon  it  by  the  State  statutes. 

Mr.  Justice  White,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  Court. 


19 

The  legal  principle  which  controls  the  determination  of 
this  cause  renders  it  unnecessary  to  state  many  of  the  facts 
contained  in  this  voluminous  record  or  to  consider  and  pass 
upon  a  number  of  the  legal  propositions  urged  in  the  cause. 
But  three  questions  are  essential  to  be  passed  upon.  They 
are,  First.  Whether  the  record  discloses  that  the  matter  in 
dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum  or 
value  of  two  thousand  dollars.  Second.  Whether,  as  to  the 
individual  defendants  below,  this  cause  in  fact  was  a  suit 
against  the  State  of  North  Carolina.  Third.  Whether  the 
order  and  decision  of  the  corporation  commission  of  North 
Carolina  and  the  statutes  of  that  State  upon  which  the  same 
was  based  were  void  because  in  conflict  with  the  commerce 
clause  of  the  Constitution  and  the  act  of  Congress  to  regu- 
late commerce. 

1.  It  was  urged  in  argument  on  behalf  of  the  commis- 
sion and  the  ice  and  coal  company  that  the  extra  cost  or  ex- 
pense, if  any,  of  placing  the  four  cars  of  coal  on  the  siding 
was  the  matter  in  controversy.    In  the  court  below  it  would 
seem  to  have  been  claimed  that  the  one  hundred  and  forty- 
six  dollars  demurrage  was  the  question  at  issue.     However 
this  may  be,  as  said  by  the  trial  court,  although  the  demur- 
rage dispute  may  have  been  the  origin  of  the  litigation,  there 
is  involved  in  the  controversy  presented  by  the  bill  not  only 
the  right  to  enforce  against  the  railway  company  the  pay- 
ment of  statutory  penalties  much  in  excess  of  two  thousand 
dollars,  but  also  the  right  of  that  company  to  carry  on  inter- 
state commerce  in  North  Carolina  without  becoming  subject 
to  such  orders  and  directions  of  the  corporation  commission 
which  so  directly  burdened  such  commerce  as  to  amount  to 
a  regulation  thereof.    This  latter  right  is  alleged  in  the  bill 
to  be  of  the  necessary  jurisdictional  value,  the  averment  was 
supported  by  testimony,  and  the  master  and  the  court  below 
have  found  such  to  be  the  fact.     There  is  no  merit  in  the 
contention  that  there  is  a  want  of  jurisdiction  to  entertain 
the  writ  of  error. 

2.  We  think  the  real  object  of  the  bill  may  properly 
be  said  to  have  been  the  restraining  of  illegal  interferences 
with  the  property   and   interstate  business .  of  the  railway 
company,  the  asserted  right  to  interfere,  which  it  was  the 
object  of  the  bill  to  enjoin,  being  based  upon  the  assumed 


20 


authority  of  a  State  statute,  which  the  bill  alleged  to  be  in 
violation  of  rights  of  the  railway  company  protected  by  the 
Constitution  of  the  United  States.  In  this  aspect  the  suit 
was  not  in  any  proper  sense  one  against  the  State.  (Scott 
vs.  Donald,  165  U.  S.  107,  112;  Pitts  vs.  McGkee,  172  U.  S. 
529,  530.) 

3.  The  cars  of  coal  not  having  been .  delivered  to  the 
consignee,  but  remaining  on  the  tracks  of  the  railway  com- 
pany in  the  condition  in  which  they  had  been  originally 
brought  into  North  Carolina  from  points  outside  of  that 
State,  it  follows  that  the  interstate  transportation  of  the 
property  had  not  been  completed  when  the  corporation  com- 
mission made  the  order  complained  of.  (Rhodes  vs.  Iowa, 
170  U.  S.  412.) 

By  section  1066  of  the  revisal  of  1905  the  general 
powers  of  the  North  Carolina  corporation  commission  were 
thus  defined : 

"1066.  General  powers. — The  corporation  commission 
shall  have  such  general  control  and  supervision  of  all  rail- 
road, street  railway,  steamboat,  canal,  express  and  sleeping 
car  companies  or  corporations  and  of  all  other  companies 
or  corporations  engaged  in  the  carrying  of  freight  or  pas- 
sengers, of  all  telegraph  and  telephone  companies,  of  all 
public  and  private  banks  and  all  loan  and  trust  companies  or 
corporations,  and  of  all  .building  and  loan  associations  or 
companies,  necessary  to  carry  into  effect  the  provisions  of 
this  chapter  and  the  laws  regulating  such  companies.  (1899, 
c.  164;  1901,  c.  679.)" 

By  section  noo  it  was  provided  as  follows: 

"noo.  Demurrage;  storage;  placing  and  loading  of 
cars. — The  commission  shall  make  rules,  regulations  and 
rates  governing  demurrage  and  storage  charges  by  railroad 
companies  and  other  transportation  companies;  and  shall 
make  rules  governing  railroad  companies  in  the  placing  of 
cars  for  loading,  and  unloading  and  in  fixing  time  limit  for 
delivery  of  freights  after  the  same  have  been  received  by  the 
transportation  companies  for  shipment.  (1903,  c.  342.)" 


21     . 

Under  these  circumstances  it  is  undoubted  that  by  a 
circular,  numbered  36  and  dated  July  9,  1903,  the  cor- 
poration commission  promulgated  rules  fully  regulating  the 
right  of  railway  companies  to  exact  and  the  amount  of 
charges  which  might  be  made  for  storage,  demurrage,  etc. 
And  the  pleadings  make  it  clear  that  the  order  of  the  cor- 
poration commission  complained  of  was  not  made  upon  the 
assumption  of  any  supposed  contract  right  which  the  cor- 
poration commission  as  a  judicial  tribunal  was  enforcing  as 
between  the  ice  and  coal  company  and  the  railway  company, 
but  was  exclusively  rested  upon  the  general  administrative 
authority  which  the  corporation  commission  deemed  it  had 
power  to  exercise  in  virtue  of  the  rights  delegated  to  it  by 
the  statutes  of  North  Carolina  as  above  stated,  Thus,  in 
paragraph  12  of  the  answer  the  corporation  commission 
averred  as  follows : 

"These  defendants  are  advised  that  the  orders  made  by 
them,  hereinbefore  referred  to,  do  not  constitute  an  inter- 
ference with  interstate  commerce  as  alleged  in  said  para- 
graph 12  (referring  to  bill  of  complaint)  ;  nor  with  the 
right  of  the  complainant  to  conduct  its  business  according 
to  its  reasonable  rules  and  regulations,  except  so  far  as  the 
corporation  commission  has  the  right  and  power  to  control 
its  rules  and  regulations  by  virtue  of  said  act  creating  the 
corporation  commission,  and  the  amendment  thereto,  con- 
tained in  chapter.  342,  Public  Laws,  1903,  whereby  the  power 
is  expressly  conferred  upon  the  North  Carolina  Corporation 
Commission,  by  subsection  26,  'to  make  rules  governing 
railroad  companies  in  the  placing  of  cars  for  loading  and 
unloading,  and  in  fixing  time  limit  for  the  delivery  of 
freights  after  the  same  have  been  received  by  the  transpor- 
tation companies  for  shipment.'  And  these  defendants 
further  say  that,  having  full  power  to  provide  for  placing 
cars  for  unloading,  and  in  conformity  with  the  rules  of  the 
said  North  Carolina  Corporation  Commission,  the  orders 
complained  of  in  the  bill  were  in  strict  conformity  to  the  law, 
and  finally  adjudged  and  made  after  the  complainant  com- 
pany had  full  opportunity  to  make  defense  as  to  its  alleged 
rights  in  the  premises." 

Without  at  all  questioning  the  right  of  the  State  of 
North  Carolina  in  the  exercise  of  its  police  authority  to  con- 


22 

• 

fer  upon  an  administrative  agency  the  power  to  make  many 
reasonable  regulations  concerning  the  place,  manner  and 
time  of  delivery  of  merchandise  moving  in  the  channels  of 
interstate  commerce,  it  is  certain  that  any  regulation  of 
such  subject  made  by  the  State  or  under  its  authority  which 
directly  burdens  interstate  commerce  is  a  regulation  of  such 
commerce  and  repugnant  to  the  Constitution  of  the  United 
States.  (Houston  &  Texas  Central  Ry.  Co.  vs.  Mayes,  201 
U.  S.  321 ;  American  Steel  &  Wire  Co.  vs.  Speed,  192  U.  S. 
500.) 

Not  being  called  upon  to  do  so,  we  do  not  pass  upon  all 
the  general  regulations  formulated  by  the  commission  on 
the  subject  stated,  but  are  clearly  of  opinion  that  the  court 
below  rightly  held  that  the  particular  application  of  those 
regulations  with  which  we  are  here  concerned  was  a  direct 
burden  upon  interstate  commerce  and  void.  Viewing  the 
order  which  is  under  consideration  in  this  case  as  an  asser- 
tion by  the  corporation  commission  of  its  general  power  to 
direct  carriers  engaged  in  interstate  commerce  to  deliver  all 
cars  containing  such  commerce  beyond  their  right  of  way 
and  to  a  private  siding,  the  order  manifestly  imposed  a  bur- 
den so  direct  and  so  onerous  as  to  leave  no  room  for  question 
that  it  was  a  regulation  of  interstate  commerce.  On  the 
other  hand,  treating  the  order  as  but  the  assertion  of  the 
power  of  the  corporation  commission  to  so  direct  in  a  par- 
ticular case,  in  favor  of  a  given  person  or  corporation,  the 
order  not  only  was  in  its  very  nature  a  direct  burden  and 
regulation  of  interstate  commerce,  but  also  asserted  a  power 
concerning  a  subject  directly  covered  by  the  act  of  Congress 
to  regulate  commerce  and  the  amendments  to  that  act,  which 
forbid  and  provide  remedies  to  prevent  unjust  discrimin- 
ations and  the  subjecting  to  undue  disadvantages  by  carriers 
engaged  in  interstate  commerce. 

The  direct  burden  and  resulting  regulation  of  interstate 
commerce  operated  by  an  alleged  assertion  of  State  authority 
similar  in  character  to  the  one  here  involved  was  passed 
upon  by  the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit 
in  Central  Stock  Yards  Co.  vs.  Louisville  &  Nashville  R.  R. 
Co.,  (118  Fed.  Rep.  113.)  The  court  in  that  case  was  called 
upon  to  determine  whether  certain  laws  of  Kentucky  im- 


23 

posed  a  direct  burden  upon  interstate  commerce  and  were  a 
regulation  of  such  commerce,  upon  the  assumption  that  those 
laws  compelled  a  common  carrier  engaged  in  interstate  com- 
merce transportation  to  deliver  cars  of  live  stock  moving  in 
the  channels  of  interstate  commerce  at  a  particular  place 
beyond  its  own  line  different  from  the  general  place  of  de- 
livery established  by  the  railway  company.  In  pointing  out 
that  if  the  legislation  in  question  was  entitled  to  the  con- 
struction claimed  for  it,  it  would  amount  to  a  State  regula- 
tion of  interstate  commerce,  it  was  .aptly  and  tersely  said 
(p.  120)  : 

"It  is  thoroughly  well  settled  that  a  State  may  not  regu- 
late interstate  commerce,  using  the  terms  in  the  sense  of  in- 
tercourse and  the  interchange  of  traffic  between  the  States. 
In  the  case  at  bar  we  think  the  relief  sought  pertains  to  the 
transportation  and  delivery  of  interstate  freight.  It  is  not 
the  means  of  making  a  physical  connection  with -other  rail- 
roads that  is  aimed  at,  but  it  is  sought  to  compel  the  cars 
and  freight  received  from  one  State  to  be  delivered  to  an- 
other at  a  particular  place  and  in  a  particular  way.  If  the 
Kentucky  constitution  could  be  given  any  such  construction, 
it  would  follow  it  could  regulate  interstate  commerce.  This 
it  cannot  do." 

As  we  conclude  that  the  court  below  rightly  decreed 
that  the  order  complained  of  was  invalid  because  amounting 
to  an  unlawful  interference  with  interstate  commerce,  we 
deem  it  unnecessary  to  consider  the  contentions  made  on 
the  cross  appeal  of  the  railway  company.  And  because  we 
confine  our  decision  to  the  issue  which  necessarily  arises  we 
do  not  intimate  any  opinion  upon  the  question  pressed  at  bar 
as  to  whether  an  order  which  was  solely  applicable  to  purely 
State  business,  directing  a  carrier  to  deliver  property  upon  a 
private  track  beyond  the  line  of  the  railway  company,  would 
be  repugnant  to  the  due  process  clause  of  the  Constitution. 

The  final  decree  which  the  Circuit  Court  entered  and  the 
writ  of  perpetual  injunction  issued  thereon  were,  however, 
much  broader  than  the  necessities  of  the  case  required,  and 
should  be  limited  so  as  to  adjudge  the  invalidity  of  the  order 
complained  of,  restrain  the  institution  by  the  defendant  of 


24 


suits  or  actions  for  the  recovery  of  penalties  or  damages 
founded  upon  the  disobedience  of  such  order,  and  forbid 
future  interferences  under  like  circumstances  and  conditions 
with  the  interstate  commerce  business  of  the  railway  com- 
pany. As  so  modified,  the  decree  below  is  affirmed. 


OF  THE  \\ 

UNIVERSITY    ji 

OF 


SCRANTON,  PA.: 

PBESS  OF  PEOPLE'S  PBINTING  CO. 
DIME  BANK  BUILDING. 

1906. 


YC  90424 


192946 


